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EXHIBIT 4.3
VOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into as of this 27th
day of December, 1993, by and between Regency Health Services, Inc., a Delaware
corporation ("Regency"), and each of the persons named on Exhibit A hereto
(each a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, Regency and Care Enterprises, Inc., a Delaware
corporation ("Care"), have entered into an agreement with respect to a merger
of Regency and Care (the "Merger Agreement"); and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Regency requested that each Stockholder agree, and in order
to induce Regency to enter into the Merger Agreement, each Stockholder has
agreed, to vote certain shares of common stock, par value $.01 per share ("Care
Common Stock"), of Care owned by such Stockholder as of the date hereof or at
any time hereafter (the "Care Shares") as provided herein; and
WHEREAS, Care and certain stockholders of Regency have agreed
to enter into a voting agreement pursuant to which such stockholders will vote
all shares of common stock, par value $.01 per share ("Regency Common Stock"),
owned by such stockholder as of the date hereof or at any time hereafter and
over which such stockholder has voting power;
NOW, THEREFORE, in consideration of the foregoing, and the
representations, warranties, covenants and agreements contained herein and in
the Merger Agreement, and intending to be legally bound, the parties hereto
agree as follows:
1. Voting Agreement. Each Stockholder hereby agrees to
appear at any annual or special meeting of stockholders of Care for the purpose
of obtaining a quorum. If Regency holds a special meeting of stockholders for
the purpose of voting upon transactions contemplated by the Merger Agreement
and the stockholders of
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Regency approve the transactions contemplated by the Merger Agreement by the
affirmative vote of a majority of the outstanding shares of Regency Common
Stock, then each Stockholder hereby agrees to vote all of its Care Shares in
favor of the transactions contemplated by the Merger Agreement.
2. Termination. This Agreement shall terminate upon the
earlier to occur of (i) the approval of the transactions contemplated by the
Merger Agreement by the affirmative vote of a majority of the outstanding
shares of Care Common Stock and (ii) the termination of the Merger Agreement in
accordance with its terms.
3. Representations and Warranties. Each Stockholder hereby
represents and warrants to Regency as follows:
(a) Authority Relative to this Agreement. Such
Stockholder has all necessary power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by such Stockholder
and, assuming that this Agreement has been duly and validly authorized,
executed and delivered by Regency, this Agreement constitutes a valid and
binding agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
(b) Ownership of Shares. Such Stockholder has good
and marketable title to all of the shares of Care Common Stock indicated
opposite such Stockholder's name on Exhibit A hereto, which constitute all the
shares of Care Common Stock owned by such Stockholder. There are no
restrictions on the voting rights pertaining to such shares of Care Common
Stock.
(c) No Conflicts. Neither the execution and
delivery of this Agreement nor the consummation by such Stockholder of the
transactions contemplated hereby will conflict with or constitute a violation
of or default under any contract, commitment, agreement, arrangement or
restriction of any kind to which such Stockholder is a party or by which such
Stockholder is bound. Other than this Agreement, there are no other agreements
or understandings with respect to the voting of the Care
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Shares, and each Stockholder hereby agrees that it will not enter into such an
agreement.
4. Representations and Warranties of Regency. Regency
hereby represents and warrants to the Stockholders as follows:
(a) Authority Relative to this Agreement. Regency
has full corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the Board of
Directors of Regency and no other corporate proceedings on the part of Regency
are necessary to authorize this Agreement or to consummate the transactions so
contemplated. This Agreement has been duly and validly executed and delivered
by Regency and, assuming that this Agreement has been duly and validly
authorized, executed and delivered by each Stockholder, this Agreement
constitutes a valid and binding agreement of Regency, enforceable against
Regency in accordance with its terms.
5. Transfer. Stockholders may sell, transfer, assign or
otherwise dispose of any of the Care Shares; provided, however, that each
Stockholder hereby agrees not to sell, transfer, assign or otherwise dispose of
the Care Shares to any Affiliate or Associate (as such terms are defined in
Rule 12b-2 of the Securities Exchange Act of 1934, as amended) unless such
Affiliate or Associate becomes a party to this Agreement. Any purported
transfer of Care Shares to any such Affiliate or Associate that does not become
a party hereto shall be null and void.
6. Entire Agreement. This Agreement (a) constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties, or any of them, with respect to the
subject matter hereof; (b) shall not be amended, altered or modified in any
manner whatsoever, except by a written instrument executed by the parties
hereto; and (c) shall be governed in all respects, including validity,
interpretation and effect, by the laws
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of the State of Delaware (without giving effect to the provisions thereof
relating to conflicts of law).
7. Specific Performance. The parties hereto acknowledge that
damages would be an inadequate remedy for a breach of this Agreement and that
the obligations of the parties hereto shall be specifically enforceable.
8. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and their respective
successors, assigns, heirs, executors, administrators and other legal
representatives; provided, that this Agreement shall not be assigned without
the prior written consent of the other party hereto, except that Regency may
assign, in its sole discretion, all or any of its rights, interests and
obligations hereunder to any direct or indirect wholly owned subsidiary of
Regency. Nothing in this Agreement, express or implied, is intended to confer
upon any other person any rights or remedies of any nature whatsoever under or
by reason of this Agreement.
9. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
10. Notices. Any notices or other communications required or
permitted hereunder shall be in writing and shall be deemed duly given upon (a)
transmitter's confirmation of a receipt of a facsimile transmission, (b)
confirmed delivery by a standard overnight carrier or (c) the expiration of
five business days after the day when mailed by certified or registered mail,
postage prepaid, addressed at the following addresses (or at such other address
as the parties hereto shall specify by like notice):
(a) If to Regency, to:
Regency Health Services, Inc.
3636 Birch Street
Suite 195
Newport Beach, California 92660
Telecopy No. (714) 851-2927
Attention: Cecil Mays
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with a copy to:
Skadden, Arps, Slate, Meagher & Flom
300 So. Grand Avenue
Los Angeles, California 90071
Telecopy No. (213) 687-5600
Attention: Brian J. McCarthy, Esq.
(b) If to any of the Stockholders, to the
respective addresses noted on Exhibit A hereto.
11. Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
12. Validity. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, each of which shall remain in full force
and effect.
13. Further Assurances. Each Stockholder will execute and
deliver all such further documents and instruments and take all such further
actions as may be necessary in order to consummate the transactions
contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
REGENCY HEALTH SERVICES, INC.
By: /s/ Cecil Mays
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Name: Cecil Mays
Title: President
Stockholders:
THE FOOTHILL GROUP, INC.
By: /s/ Jeff Nakora
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Name: Jeff Nakora
Title: Vice President
THE FOOTHILL FUND, a
California Limited Partnership
By: The Foothill Group, Inc.,
its General Partner
By: /s/ Jeff Nakora
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Name: Jeff Nakora
Title: Vice President
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FOOTHILL CAPITAL CORPORATION
By: /s/ Jeff Nakora
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Name: Jeff Nakora
Title: Vice President
FOOTHILL PARTNERS, L.P.,
a Delaware Limited Partnership
By: Jeff Nakora, its General Partner
By: /s/ Jeff Nakora
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Name: Jeff Nakora
FOOTHILL MANAGERS LIMITED II,
a California Limited Partnership
By: The Foothill Group, Inc.,
its General Partner
By: /s/ Jeff Nakora
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Name: Jeff Nakora
Title: Vice President
/s/ John F. Nickoll
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John F. Nickoll
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SOLVATION d/b/a SMITH
MANAGEMENT COMPANY
By: /s/ John W. Adams
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Name: John W. Adams
Title: President
/s/ Randall D. Smith
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Randall D. Smith
/s/ John W. Adams
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John W. Adams
/s/ Jeffrey A. Smith
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Jeffrey A. Smith
ENERGY MANAGEMENT CORPORATION
By: /s/ Jeffrey A. Smith
Name: Jeffrey A. Smith
Title: President
SEGA ASSOCIATES, L.P.
By: John W. Adams,
its General Partner
By: /s/ John W. Adams
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Name: John W. Adams
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THE DURIAN TRUST
By: /s/ Jeffrey A. Smith
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Name: Jeffrey A. Smith
Title: Trustee
WOODSTEAD ASSOCIATES, L.P.
By: Randall D. Smith,
its General Partner
By: /s/ Randall D. Smith
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Name: Randall D. Smith
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EXHIBIT A
Name of Stockholder Number
and Securities as of
Address for Notice Class of Securities the Date Hereof
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The Foothill Group* Common Stock 193,362
The Foothill Fund* Common Stock 1,663,857
Foothill Capital Common Stock 714,286
Corporation*
Foothill Partners, Common Stock 553,921
L.P.*
John F. Nickoll* Common Stock 35,803
Solvation d/b/a Smith Common Stock 1,607,143
Management Company**
Randall D. Smith** Common Stock 332,735
Energy Management Common Stock 1,466,604
Corporation**
SEGA Associates, Common Stock 64,175
L.P.**
The Durian Trust** Common Stock 312,962
Woodstead Associates Common Stock 916,935
L.P.**
* Address for Notice: 11111 Santa Monica Blvd.
Suite 1500
Los Angeles, CA 90025
** Address for Notice: 767 Third Avenue
New York, NY 10017