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EXHIBIT 4.4
VOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into as of this 27th
day of December, 1993, by and between Care Enterprises, Inc., a Delaware
corporation ("Care"), and each of the persons named on Exhibit A hereto (each a
"Stockholder" and, collectively, the "Stockholders").
WHEREAS, Care and Regency Health Services, Inc., a Delaware
corporation ("Regency"), have entered into an agreement with respect to a
merger of Care and Regency (the "Merger Agreement"); and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Care requested that each Stockholder agree, and in order to
induce Care to enter into the Merger Agreement, each Stockholder has agreed, to
vote all shares of Common Stock, par value $.01 per share ("Regency Common
Stock"), of Regency beneficially owned by such Stockholder as of the date
hereof or at any time hereafter (the "Regency Shares") as provided herein; and
WHEREAS, Regency and certain stockholders of Care have agreed
to enter into a voting agreement pursuant to which such stockholders will,
subject to certain conditions, vote all shares of Common Stock, par value $.01
per share ("Care 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 Regency for the
purpose of obtaining a quorum. Each Stockholder hereby agrees to vote all of
its Regency Shares in favor of the transactions contemplated by the Merger
Agreement.
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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 Regency 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 Care 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 Care, 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 Regency Common Stock indicated
opposite such Stockholder's name on Exhibit A hereto, which constitute all the
shares of Regency Common Stock owned by such Stockholder. There are no
restrictions on the voting rights pertaining to such shares of Regency 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 Regency Shares, and each
Stockholder hereby agrees that it will not enter into such an agreement.
4. Representations and Warranties of Care. Care hereby
represents and warrants to the Stockholders as follows:
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(a) Authority Relative to this Agreement. Care 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 Care and no
other corporate proceedings on the part of Care are necessary to authorize this
Agreement or to consummate the transactions so contemplated. This Agreement
has been duly and validly executed and delivered by Care 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
Care, enforceable against Care in accordance with its terms.
5. Transfer. Stockholders may sell, transfer, assign or
otherwise dispose of any of the Regency Shares; provided, however, that each
Stockholder hereby agrees not to sell, transfer, assign or otherwise dispose of
the Regency 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 Regency 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 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.
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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 Care 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
Care. 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 Care, to:
Care Enterprises, Inc.
2742 Dow Avenue
Tustin, California 92680-7245
Telecopy No. (714) 544-4443 x2401
Attention: John W. Adams
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with a copy to:
Sidley & Austin
2049 Century Park East
Los Angeles, California 90067-3208
Telecopy No. (310) 556-6502
Attention: Moshe J. Kupietzky, 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.
CARE ENTERPRISES, INC.
By: /s/ John W. Adams
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Name: John W. Adams
Title: Chairman and Chief
Executive Officer
Stockholders:
/s/ Cecil Mays
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Cecil Mays
/s/ Carol Mays
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Carol Mays
EL DORADO INVESTMENT COMPANY
By: /s/ Gregory S. Anderson
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Name: Gregory S. Anderson
Title: Managing Director
SUNDANCE CAPITAL CORPORATION
By: /s/ Gregory S. Anderson
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Name: Gregory S. Anderson
Title: Vice President
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EXHIBIT A
Name of Stockholder Number of
and Securities as of
Address for Notice Class of Securities the Date Hereof
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Cecil and Carol Mays Common Stock 596,703
3636 Birch Street
Suite 195
Newport Beach, CA 92660
El Dorado Investment Common Stock 746,143
Company
400 East Van Buren St.
Suite 650
Phoenix, AZ 85004
Sundance Capital Common Stock 131,516
Corporation
400 East Van Buren St.
Suite 650
Phoenix, AZ 85004
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