Exhibit 7.3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of March 30, 2000 (this "Agreement"), by and
between Vicar Recap, Inc., a Delaware corporation ("Recap"), and Xxxxxx X.
Xxxxx, an individual (the "Stockholder").
WHEREAS, Recap, Veterinary Centers of America, Inc., a Delaware corporation
(the "Company"), and Vicar Operating, Inc., a Delaware corporation and a
wholly owned subsidiary of Company ("Operating Company"), are entering into
that certain Agreement and Plan of Merger, dated as of this date (as may be
modified or amended from time to time in a manner not adverse to the
Stockholder, the "Merger Agreement"), which provides, among other things, that
prior to the Merger Company shall contribute all of its assets, properties,
business operations, and liabilities to Operating Company (the "Asset Drop
Down"), followed by the merger of Recap with and into the Company with the
Company as the surviving corporation (the "Merger");
WHEREAS, in connection with the Merger Agreement, Recap has requested that
the Stockholder make certain agreements with respect to certain shares of
capital stock of the Company (the "Shares") beneficially owned by the
Stockholder, upon the terms and subject to the conditions of this Agreement;
WHEREAS, in connection with the Merger Agreement, Recap and certain
stockholders are entering into Exchange and Subscription Agreements (the
"Exchange Agreements"), which provide, among other things, for such
stockholders to exchange shares of capital stock of the Company for shares of
capital stock of Recap prior to the closing of the Merger; and
WHEREAS, the Stockholder is willing to make certain agreements with respect
to the Subject Shares (as defined below).
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth in this Agreement, the parties agree as follows:
1. Voting Agreements. For so long as this Agreement is in effect, at any
meeting of the stockholders of the Company, and in any action by consent of
the stockholders of the Company, the Stockholder shall vote, or, if
applicable, give consents with respect to, all of the Subject Shares that are
held by the Stockholder on the record date applicable to the meeting or
consent (i) in favor of the Merger Agreement and the Merger and the Asset Drop
Down contemplated by the Merger Agreement; (ii) against any competing
Acquisition Proposal (as defined in the Merger Agreement) or other proposal
inconsistent with the Merger Agreement or which may delay or adversely affect
the likelihood of the completion of the Merger or the Asset Drop Down; (iii)
against any change in a majority of the persons who constitute the board of
directors of the Company inconsistent with the Merger Agreement, the Merger or
the Asset Drop Down; (iv) against any change in the capitalization of the
Company or any amendment of the Company's Certificate of Incorporation or
Bylaws inconsistent with the Merger Agreement, the Merger or the Asset Drop
Down; and (v) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement which is considered at any
such meeting or in any such consent. Such Stockholder shall not enter into any
agreement or understanding with any person the effect of which would be
inconsistent with or violate the provisions of agreements contained in this
Section 1. The Stockholder shall use his reasonable best efforts to cast the
Stockholder's vote or give the Stockholder's consent in accordance with the
procedures communicated to the Stockholder by the Company relating thereto so
that the vote or consent shall be duly counted for purposes of determining
that a quorum is present and for purposes of recording the results of that
vote or consent.
2. Subject Shares. The term "Subject Shares" shall mean the Shares set
forth on Schedule A hereto, together with any shares of capital stock of the
Company acquired by the Stockholder after the date hereof over which the
Stockholder has the power to vote or the power to direct the voting thereof.
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3. Stockholder Capacity. If the Stockholder is or becomes during the term
of this Agreement a director or officer of the Company or Operating Company,
the Stockholder shall not be deemed to have made any agreement or
understanding herein in his or her capacity as such director or officer, and
no action taken by the Stockholder in his capacity as an officer or director
of the Company or Operating Company shall be deemed a breach of this
Agreement. The Stockholder signs solely in Stockholder's capacity as the
beneficial owner of the Stockholder's Subject Shares and nothing herein shall
limit or affect any actions taken by the Stockholder in any capacity as an
officer or director of the Company or Operating Company to the extent
specifically permitted by the Merger Agreement. Nothing in this Agreement
shall be deemed to constitute a transfer of the beneficial ownership of the
Subject Shares by the Stockholder.
4. Covenants. For so long as this Agreement is in effect, except as
otherwise contemplated by the Merger Agreement or the Exchange Agreements, the
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 (each such disposition or contract, a "Transfer"),
of any Subject Shares or Shares the Stockholder then has or will have the
right to acquire pursuant to options, warrants, convertible securities or
other such rights to purchase Shares granted to the Stockholder by the
Company; (ii) grant any powers of attorney, consents, or proxies with respect
to any shares that then constitute Subject Shares, deposit any of the Subject
Shares into a voting trust, enter into a voting or option agreement with
respect to any of the Subject Shares inconsistent with the Merger Agreement or
this Agreement, or otherwise restrict or take any action adversely affecting
the ability of the Stockholder freely to exercise all voting rights with
respect to the Subject Shares; (iii) subject to Section 3, directly or
indirectly, solicit, initiate, encourage or otherwise facilitate any inquiries
or the making of any proposal or offer with respect to an Acquisition Proposal
(as defined in the Merger Agreement) or engage in any negotiation concerning,
or provide any confidential information or data to, or have any discussions
with any person relating to an Acquisition Proposal; and the Stockholder shall
notify Recap immediately if any such inquiries or proposals are received by,
any such information is requested from, or any such negotiations or
discussions are sought to be initiated or continued with the Stockholder; or
(iv) permit, cause, or take any action, or fail to take any action, which
would make any representation, warranty, covenant, or other undertaking of the
Stockholder in this Agreement untrue or incorrect or prevent, burden or
materially delay the consummation of the transactions contemplated by this
Agreement; provided, however, that nothing in the foregoing provisions of this
Section 4 shall prohibit the Stockholder from effecting any transfer of
Subject Shares pursuant to any bona fide charitable gift or by will or
applicable laws of descent and distribution, or for estate planning purposes,
if the transferee agrees in writing to be bound by the provisions of this
Agreement. As used in this Agreement, "person" shall have the meaning
specified in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of
1934, as amended.
5. Waiver of Dissenters' Rights. The Stockholder hereby waives any rights
to dissent from the Merger or the Asset Drop Down.
6. Representations and Warranties of the Stockholder. The Stockholder
represents and warrants to Recap that:
(a) Capacity; No Violations. The Stockholder has the legal capacity to
enter into this Agreement and to consummate the transactions contemplated
by this Agreement. This Agreement has been duly executed and delivered by
the Stockholder and constitutes a valid and binding agreement of the
Stockholder enforceable against the Stockholder in accordance with its
terms except as such enforceability may be limited by applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and general principles of equity (whether considered in a
proceeding in equity or at law). The execution, delivery and performance by
the 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
the Stockholder is a party or by which the Stockholder is bound, (ii)
violate any order, writ, injunction, decree or statute, or any law, rule or
regulation applicable to the Stockholder or the Subject Shares; or (iii)
result in the creation of, or impose any obligation on the Stockholder to
create, any Lien upon the Subject Shares that would prevent the Stockholder
from voting the
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Subject Shares. In this Agreement, "Lien" shall mean any lien, pledge,
security interest, claim, third party right or other encumbrance.
(b) Subject Shares. The Stockholder has the power to vote or direct the
voting of the Subject Shares. The Subject Shares are the only shares of any
class of capital stock of the Company which the Stockholder has the right,
power or authority (sole or shared) to sell or vote, and, the 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 exercisable for any shares of any class
of capital stock of the Company. The Stockholder is not a party to any
contracts (including proxies, voting trusts or voting agreements) that
would prevent the Stockholder from voting the Subject Shares or conflict
with the provisions of this Agreement.
(c) Title to Shares. Except as set forth on Schedule B, the Stockholder
is the sole record and beneficial owner of the Subject Shares, free and
clear of any pledge, Lien, security interest, mortgage, charge, claim,
equity, option, proxy, voting restriction, voting trust or agreement,
understanding, arrangement, right of first refusal, limitation on
disposition, adverse claim of ownership or use or encumbrance of any kind,
other than restrictions imposed by the securities laws or pursuant to this
Agreement or the Merger Agreement.
(d) No Finder's Fees. Except as disclosed in the Merger Agreement, no
broker, investment banker, financial advisor, or other person is entitled
to any broker's, finder's, financial advisor's, or other similar fee or
commission in connection with the transactions contemplated hereby based
upon arrangements made by or on behalf of the Stockholder the payment of
which could become the obligation of the Company, Operating Company or
Recap. The Stockholder, on behalf of itself and its affiliates, hereby
acknowledges that it is not entitled to receive any broker's, finder's,
financial advisor's, or other similar fee or commission in connection with
the transactions contemplated hereby or by the Merger Agreement.
7. Expenses. Recap shall pay its own expenses incurred in connection with
this Agreement.
8. Specific Performance. The Stockholder acknowledges and agrees that if
Stockholder fails to perform any of Stockholder's obligations under this
Agreement, immediate and irreparable harm or injury would be caused to Recap
for which money damages would not be an adequate remedy. Accordingly, the
Stockholder agrees that Recap shall have the right, in addition to any other
rights it may have, to specific performance of this Agreement. If Recap should
institute an action or proceeding seeking specific enforcement of the
provisions of this Agreement, the Stockholder hereby waives the claim or
defense that Recap has an adequate remedy at law and hereby agrees not to
assert in that action or proceeding the claim or defense that a remedy at law
exists. The Stockholder further agrees to waive any requirements for the
securing or posting of any bond in connection with obtaining any equitable
relief.
9. Notices. All notices and other communications given or made pursuant to
this Agreement shall be in writing and shall be deemed to have been duly given
or made as of the date of receipt and shall be delivered personally or mailed
by registered or certified mail (postage prepaid, return receipt requested),
sent by overnight courier or sent by telecopy, to the applicable party at the
following addresses or telecopy numbers (or at any other address or telecopy
number for a party as shall be specified by like notice):
If to Recap, to:
Vicar Recap, Inc.
c/o Xxxxxxx Xxxxx & Partners, L.P.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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With a copy to:
Irell & Xxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Stockholder:
at the address and telephone number
set forth on the signature page
With a copy to:
Troop Xxxxxxx Pasich Reddick & Xxxxx, LLP
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: C.N. Xxxxxxxx Xxxxxxx III, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10. Parties in Interest. This Agreement shall inure to the benefit of and
be binding upon the parties and their respective successors and permitted
assigns; provided, however, that any successor in interest or assignee 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 other
than Recap, the Stockholder or their successors or assigns, any rights or
remedies under, or by reason, of this Agreement.
11. Entire Agreement; Amendments. Other than the Merger Agreement, the
Exchange Agreements and the transactions contemplated therein, this Agreement
contains the entire agreement between the Stockholder and Recap with respect
to the subject matter of this Agreement and supersedes all prior and
contemporaneous agreements and understandings, oral or written, with respect
to these transactions. 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.
12. 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 to this Agreement, except that (a) Recap may assign its rights and
obligations under this Agreement to Parent (as defined in the Merger
Agreement) or any of Parent's or Recap's direct or indirect wholly owned
subsidiaries or affiliates, and (b) the Stockholder may transfer the Subject
Shares to the extent permitted by Section 4 of this Agreement.
13. Headings. The section headings in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to any
choice or conflict of law provision or rule (whether of the State of Delaware
or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
16. Termination. This Agreement shall terminate automatically and without
further action on behalf of any party at the earlier of (i) the Effective Time
(as defined in the Merger Agreement) and (ii) the date the Merger Agreement is
terminated pursuant to and in accordance with its terms.
[Signature page follows]
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IN WITNESS WHEREOF, Recap and the Stockholder have caused this Agreement to
be duly executed and delivered on the day and year first above written.
VICAR RECAP, INC.
a Delaware corporation
By /s/ Xxxx Xxxxxxx
___________________________________
Name: Xxxx Xxxxxxx
Title: President
STOCKHOLDER
/s/ Xxxxxx X. Xxxxx
_____________________________________
Xxxxxx X. Xxxxx
Address:
c/o Veterinary Centers of America,
Inc.
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone Number:
(000) 000-0000
Facsimile Number:
(000) 000-0000
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SCHEDULE A
SHARES OWNED
919,259 shares of Common Stock of the Company
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SCHEDULE B
TITLE TO SHARES
Exchange and Subscription Agreement, dated as of March 30, 2000, by and between
Stockholder and Recap.
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