VOTING AGREEMENT
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This Voting Agreement (this "Agreement") is made as of April 7, 1995 by and
among NORTH CENTRAL PERSONNEL, INC., an Ohio corporation ("NCP") and AMSERV
HEALTHCARE INC., a Delaware corporation (the "Company").
WHEREAS, NCP will acquire 426,794 shares (the "Shares") of the Class A
Redeemable Preferred Stock, par value $.01 per share, of the Company (the
"Preferred Stock") pursuant to a Stock Purchase Agreement, dated as of April 7,
1995 ("Stock Agreement");
WHEREAS, NCP and the Company desire to provide greater certainty with
respect to their future relationships including certain restrictions on the
shares of Preferred Stock;
WHEREAS, the Stock Agreement contemplates that this Agreement be executed
and delivered by the parties hereto contemporaneously with the execution and
delivery of the Stock Agreement and as a condition to effectuating the Stock
Agreement; and
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties, intending to be legally bound hereby, agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
SECTION 1.01 Representations and Warranties of NCP. NCP hereby represents
and warrants to the Company as follows:
(a) Authorization of NCP. The execution, delivery and performance of
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this Agreement and all other actions relating hereto by NCP have been duly
and validly authorized by the Board of Directors of NCP. This Agreement to
be signed by NCP constitutes validly executed and delivered and binding
obligations of NCP enforceable in accordance with its terms.
(b) Consents; Conflicts. Neither the execution nor the delivery of
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this Agreement nor the consummation of the transactions contemplated
hereby, nor compliance with any of the provisions hereof will (i) conflict
with or result in a breach of the Certificate of Incorporation or Bylaws of
NCP, or (ii) to NCP's knowledge, violate any statute, law, rule or
regulation or any order, writ, injunction or decree of any court or
governmental authority or (iii) violate or conflict with or constitute a
default under (or give rise to any right of termination, cancellation or
acceleration under) any material agreement or writing of any nature to
which NCP is bound. Except as otherwise described herein, no consent,
approval or authorization of, or designation,
declaration or filing with any governmental authority or other persons or
entities on the part of NCP is required in connection with the execution or
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
SECTION 1.02 Representations and Warranties of the Company. The Company
hereby represents and warrants to NCP as follows:
(a) Authorization of the Company. The execution, delivery and
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performance of this Agreement and all other actions relating hereto by the
Company have been duly and validly authorized by the Board of Directors of
the Company. This Agreement to be signed by the Company constitutes
validly executed and delivered and binding obligations of the Company
enforceable in accordance with its terms.
(b) Consents; Conflicts. Neither the execution and delivery of this
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Agreement nor the consummation by the Company of the transactions
contemplated hereby, nor compliance with any of the provisions hereof will:
(i) conflict with or result in a breach of the Certificate of Incorporation
or Bylaws of the Company; (ii) violate any statute, law, rule or regulation
or any order, writ, injunction or decree of any court or governmental
authority; or (iii) violate or conflict with or constitute a default under
(or give rise to any right of termination, cancellation or acceleration
under) any material agreement or writing of any nature to which the Company
is a party or by which it or its assets or properties may be bound. Except
as otherwise described herein, no consent, approval, authorization of, or
designation, declaration or filing with any governmental authority or other
persons or entities on the part of the Company is required in connection
with the execution or delivery of this Agreement or the consummation of the
transactions contemplated hereby.
ARTICLE II
LIMITATIONS AND RESTRICTIONS
SECTION 2.01 Voting; Impairment. NCP agrees that during the term of this
Agreement, at every meeting of stockholders of the Company and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of the Company, NCP will vote all of the Shares in accordance with
the recommendations of the Board on all matters with respect to possible change
in contests transactions, change in Board composition contests and Board
elections, including but not limited to, consent, proxy and stockholder
solicitations. Concurrent with the execution of this Agreement, NCP agrees to
deliver to the Company a proxy (which is coupled with an interest) in the form
of EXHIBIT A (the "Proxy"), which shall be irrevocable to the extent provided in
Section 212 of the Delaware General Corporation Law, covering all of the Shares.
Notwithstanding this Section, nothing herein shall require NCP to take any
action which would directly and adversely impair the priority or redemption
rights of the Preferred Stock. In the event of any such action, the Board will
promptly notify NCP.
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SECTION 2.02 Transfer of Shares. Any transferee of any shares of the
Preferred Stock takes such shares of Preferred Stock subject to this Agreement
and the Proxy. In the event NCP transfers any shares of Preferred Stock, such
transferee shall be subject to and bound by this Agreement and the Proxy as if
such transferee actually executed a copy of this Agreement.
SECTION 2.03 Effect of Non-Compliance. No action or inaction, sale,
purchase or other acquisition or assignment, transfer, grant of an option with
respect to or other disposition of any interest in (or agreement, arrangement or
understanding with respect to the foregoing) any of the Preferred Stock in
violation of the provisions of this Agreement shall be valid; and the Company
shall not transfer such Preferred Stock on the books of the Company, nor shall
such Preferred Stock be entitled to vote during the period of any violation of
this Agreement. Nothing in the preceding sentence shall waive or deprive the
Company of any other rights or remedies it may have in this Agreement or at law
for any sale of Preferred Stock in violation of this Agreement. The above
disqualifications shall be in addition to and not in lieu of any other remedies,
legal or equitable, to enforce these provisions.
ARTICLE III
MISCELLANEOUS
SECTION 3.01 Board Action. For purposes of this Agreement all references
in this Agreement to any recommendation, action, consent, invitation, approval,
determination, request or waiver by the Board shall mean recommendation,
action, consent, invitation, approval, determination, request or waiver which is
authorized by a majority of the directors or any committee so delegated by the
Board. Unless otherwise determined by the Board, it shall also mean action,
consent, invitation, approval, determination, request or waiver which is
authorized by a majority of the directors who serve on the Executive Committee
of the Board.
SECTION 3.02 Interpretation. For all purposes of this Agreement, the
term Shares of Preferred Stock shall include any securities of an issuer
entitled to vote for the election of directors of an issuer which securities the
holders of the Preferred Stock shall have received or as a matter of right be
entitled to receive as a result of (i) any capital reorganization or
reclassification of the capital stock of the Company, (ii) any consolidation,
merger or share exchange of the Company with or into another corporation or
(iii) any sale of all or substantially all the assets of the Company.
SECTION 3.03 Enforcement.
(a) The Company and NCP each acknowledge and agree that irreparable
damage would occur if any of the provisions of this Agreement were not
complied with in accordance with their specific terms. Accordingly, each
of the parties will be entitled to any injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically its provisions in
any court of the United States or any state having
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jurisdiction, this being in addition to any other remedy to which they may
be entitled at law or in equity.
(b) No failure or delay on the part of any party in the exercise of
any power, right or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege.
SECTION 3.04 Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to its subject matter and supersedes
all prior and contemporaneous agreements and understandings, inducements or
conditions, expressed or implied, oral or written, except as herein contained.
This Agreement may be amended only by a written instrument duly executed by the
parties.
SECTION 3.05 Severability. If any provision of this Agreement is held by
a court of competent jurisdiction to be unenforceable, the remaining provisions
shall remain in full force and effect. It is declared to be the intention of
the parties that they would have executed the remaining provisions without
including any that may be declared unenforceable.
SECTION 3.06 Headings. Descriptive headings are for convenience only and
will not control or affect the meaning or construction of any provision of this
Agreement.
SECTION 3.07 Counterparts. This Agreement may be executed in two or more
counterparts, and each such executed counterpart will be an original instrument.
SECTION 3.08 Notices. All notices, claims, certificates, requests,
demands and other communications ("Communication") hereunder shall be in writing
and shall be deemed to have been duly given when (i) mailed by registered or
certified mail, postage prepaid, (ii) sent by reliable overnight courier, or
(iii) telecopied and followed immediately by copy mailed, addressed as follows:
If to the Company, to:
AMSERV HEALTHCARE INC.
3252 Holiday Court, Suite 204
La Jolla, California 92037
Attn: Eugene J. Mora, Chairman
Telecopy No.: (619) 597-1001
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with a copy to:
Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60601-3693
Attn: Jeffrey R. Patt, Esq.
Telecopy No.: (312) 902-1061
If to NCP to:
North Central Personnel, Inc.
713 South Main Street
Mansfield, Ohio 44907
Attn: Diane Gurik, President
with a copy to:
70 Park Avenue West
Mansfield, Ohio 44902
Telecopy No.: (419) 525-3810
Attn: Bud Vetter, Esq.
or to such other addresses as the person to whom notice is to be given may have
furnished to the other in writing in accordance herewith. A Communication given
by any other means shall be deemed duly given when actually received by the
addressees.
SECTION 3.09 Assignment No Third-Party Beneficiaries. Except as
expressly provided in this Agreement, this Agreement and the rights, duties and
obligations hereunder may not be assigned or delegated by any party without the
prior written consent of the Company. Any other assignment or delegation of
rights, duties or obligations hereunder made without the prior written consent
of the Company shall be void and of no effect. If any party assigns any rights
or duties hereunder pursuant to the provisions of this Agreement, such party
shall not be relieved of its obligations hereunder and such party
unconditionally guarantees the performance by the assignee of such party's
obligation hereunder. This Agreement is intended for the benefit of and is
enforceable by the Company. This Agreement is not intended, and shall not,
confer any rights or benefits on any persons other than the parties hereto.
Notwithstanding the foregoing, a transferee who acquires any shares of the
Preferred Stock will succeed and be subject to the rights and obligations of the
transferor under this Agreement.
SECTION 3.10 Term. This Agreement shall continue in full force and
effect until the earlier to occur of: (a) there are no shares of Preferred
Stock outstanding or (b) the tenth anniversary of the date of this Agreement.
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SECTION 3.11 Governing Law. This Agreement shall be construed under and
in accordance with the laws of the State of Delaware. If a party hereunder
shall default on any term under this Agreement, the other party may enforce this
Agreement by specific performance; or such party shall have any and all other
remedies available to it at law or in equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first referred to above.
AMSERV HEALTHCARE INC. NORTH CENTRAL PERSONNEL, INC.
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By: Eugene Mora By: Diane Gurik
Its: Chairman Its: President
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EXHIBIT A
IRREVOCABLE PROXY TO VOTE
AMSERV HEALTHCARE INC.
The undersigned stockholder (the "Stockholder") of AMSERV HEALTHCARE INC.,
a Delaware corporation (the "Company"), hereby irrevocably (to the full extent
permitted by Section 212 of the Delaware General Corporation Law) appoints
Eugene Mora, as agent for the Board of Directors of the Company, as the sole and
exclusive attorney and proxy of the Stockholder, with full power of substitution
and resubstitution, to vote and exercise all voting and related rights (to the
full extent that the undersigned is entitled to do so) with respect to the
426,794 shares of Class A Redeemable Preferred Stock, $.01 par value (the
"Preferred Stock") of the Company and any and all other shares or securities of
the Company issued or issuable in respect thereof on or after the date hereof
(collectively, the "Shares") in accordance with the terms of this Proxy. The
Shares beneficially owned by the Stockholder as of the date of this Proxy are
listed on the final page of this Proxy. Upon the Stockholder's execution of
this Proxy, any and all prior proxies given by the Stockholder with respect to
any Shares are hereby revoked and the undersigned agrees not to grant any
subsequent proxies with respect to the Shares until after the Expiration Date
(as defined below).
This proxy is irrevocable (to the extent provided in Section 212 of the
Delaware Corporation law), coupled with an interest and is granted pursuant to
that certain Voting Agreement of even date herewith by and between the Company
and the Stockholder, and is granted in consideration of Company entering into
that certain Amendment No. 2 to the Asset Purchase Agreement of even date
herewith, among the Company, the Stockholder and AMSERV HEALTHCARE OF OHIO, INC.
and the Stock Purchase Agreement of even date herewith between the Company and
the Stockholder. As used herein the term "Expiration Date" shall mean the
earlier to occur of (i) there are no shares of Preferred Stock outstanding or
(ii) the tenth anniversary of this Irrevocable Proxy.
The attorney and proxy named above is hereby authorized and empowered by
the Stockholder, at any time prior to the Expiration Date, to act as the
Stockholder's attorney and proxy to vote the Shares, and to exercise all voting
rights of the Stockholder with respect to the Shares (including, without
limitation, the power to execute and deliver written consents pursuant to
Section 228 of the Delaware General Corporation Law), at every annual, special
or adjourned meeting of the stockholders of the Company and in every written
consent in lieu of such meeting in accordance with the recommendations of the
Board of Directors of the Company on all matters with respect to possible change
in control contests, change in Board composition contests and Board elections,
including but not limited to, consent, proxy and stockholder solicitations.
Any obligation of the Stockholder hereunder shall be binding upon the
successors and assigns of the Stockholder.
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This proxy is irrevocable (to the extent provided in Section 212 of the
Delaware General Corporation Law).
Dated: April 7, 1995 NORTH CENTRAL PERSONNEL, INC.
______________________________
By: Diane Gurik
Its: President
Shares beneficially owned:
426,794 shares of Class A Redeemable
Preferred Stock
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