EXHIBIT 2(b)
PROXY AGREEMENT
AGREEMENT, dated December 16, 1995, between HEALTHSOUTH Corporation, a
Delaware corporation ("HEALTHSOUTH"), and RAYMOND J. DUNN, III, a resident of
the State of Massachusetts (the "Stockholder").
WHEREAS, as of the date hereof, the Stockholder owns shares of Common
Stock, par value $.01 per share (the "Advantage Health Common Stock"), of
Advantage Health Corporation, a Delaware corporation ("Advantage Health")
(819,000 of such shares being referred to herein as the "Shares");
WHEREAS, HEALTHSOUTH, a subsidiary of HEALTHSOUTH (the "HEALTH- SOUTH
Subsidiary") and Advantage Health propose to enter into a Plan and Agreement of
Merger, dated as of the date hereof (as the same may be amended from time to
time, the "Plan of Merger"), which provides, upon the terms and subject to the
conditions thereof, for the merger of Advantage Health with and into HEALTHSOUTH
by merging the HEALTHSOUTH Subsidiary into Advantage Health (the "Merger"); and
WHEREAS, as a condition of the willingness of HEALTHSOUTH to enter into
the Plan of Merger, HEALTHSOUTH has requested that the Stockholder agree, and,
in order to induce HEALTHSOUTH to enter into the Plan of Merger, the Stockholder
has agreed, to grant HEALTHSOUTH his proxy to vote the Shares;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Plan of Merger, the parties
hereto agree as follows:
Section 1. Representation and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to HEALTHSOUTH as follows:
1.1 Authority, etc. The Stockholder has full power and authority to
execute and deliver this Proxy Agreement and to consummate the transactions
contemplated hereby and by the Plan of Merger. The execution and delivery of the
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of such Stockholder. This
Agreement has been duly executed and delivered by the Stockholder and, assuming
its due authorization, execution and delivery by HEALTHSOUTH, constitutes a
legal, valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms, subject to the effect of any
applicable bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to enforceability, to the
effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
1.2 Title to Shares. The Stockholder is the record owner of the Shares,
free and clear of any proxy or voting restriction other than pursuant to this
Proxy Agreement.
Section 2. Transfer and Voting of Shares.
2.1. Transfer or Conversion of Shares. During the Proxy Term (as
defined below), and except as otherwise provided herein, or in or permitted by
the Plan of Merger, the Stockholder shall not (a) sell, pledge or otherwise
dispose of any of the Shares, (b) deposit the Shares into a voting trust or
enter into a voting agreement or arrangement with respect to the Shares or grant
any proxy with respect thereto other than pursuant to this Proxy Agreement, or
(c) enter into any contract, option or other arrangement or undertaking with
respect to the direct or indirect acquisition or sale, assignment, transfer or
other disposition of any Advantage Health Common Stock.
2.2. Voting of Shares; Further Assurances. (a) The Stockholder, by this
Agreement, does hereby constitute and appoint HEALTHSOUTH, or any nominee of
HEALTHSOUTH, with full power of substitution, during and for the Proxy Term, as
his true and lawful attorney and proxy, for and in his name, place and stead, to
vote each of the Shares as his proxy, at every annual, special or adjourned
meeting of the stockholders of Advantage Health (including the right to sign his
name (as a stockholder) to any consent, certificate or other document relating
to Advantage Health that the law of the State of Delaware may permit or require)
(i) in favor of the adoption of the Plan of Merger and approval of the Plan of
Merger and the other transactions contemplated by the Plan of Merger, (ii)
against any proposal for any recapitalization, merger, sale of assets or other
business combination between Advantage Health and any person or entity (other
than the Merger) or any other action or agreement that would result in a breach
of any covenant, representation or warranty or any other obligation or agreement
of Advantage Health under the Plan of Merger or which could result in any of the
conditions to Advantage Health's obligations under the Plan of Merger not being
fulfilled, and (iii) in favor of any other matter relating to consummation of
the transactions contemplated by the Plan of Merger.
(b) For the purposes of this Agreement, "Proxy Term" shall mean the
period from the execution of this Agreement until the termination of the Plan of
Merger, and following termination of the Plan of Merger, during such time as a
Third Party Acquisition Event (as defined in the Plan of Merger) exists with
respect to Advantage Health; provided that in no event shall the Proxy Term
extend beyond the close of business one year following the termination of the
Plan of Merger.
(c) The Stockholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
HEALTHSOUTH the power to carry out the provisions of this Proxy Agreement.
Section 3. General Provisions.
3.1 Severability. If any term or other provision of this Proxy
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Proxy Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other
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provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Proxy Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
3.2. Entire Agreement. This Proxy Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or either of them, with respect to
the subject matter hereof.
3.3. Assignment. This Proxy Agreement shall not be assigned by
operation of law or otherwise.
3.4. Parties in Interest. This Proxy Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this Proxy
Agreement, express or implied, is intended to or shall confer upon any person
any right, benefit or remedy of any nature whatsoever under or by reason of this
Proxy Agreement.
3.5. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event any provision of this Proxy Agreement is not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
3.6. Governing Law. This Proxy Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed and to be performed entirely within that state.
3.7. Counterparts. This Proxy Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Proxy Agreement as
of the date first written above.
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Raymond J. Dunn, III
HEALTHSOUTH Corporation
By:
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Its
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