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EXHIBIT 10.37
VOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into as of August 16, 1996,
by and between Park Hospital GmbH, a German corporation (the "Paracelsus
Shareholder"), and each of the persons named on Exhibit A hereto (each a
"Shareholder" and, collectively, the "Shareholders").
WHEREAS, Paracelsus Healthcare Corporation, a California corporation
("Paracelsus"), PC Merger Sub, Inc., a Delaware corporation ("Merger Sub"), and
Champion Healthcare Corporation, a Delaware corporation ("Champion"), have
entered into an agreement with respect to a merger of Champion and Merger Sub
(the "Merger Agreement"); and
WHEREAS, pursuant to the Merger Agreement, the Paracelsus Shareholder
and Paracelsus will enter into a Shareholder Agreement (the "Shareholder
Agreement") at or prior to the closing of the transactions contemplated by the
Merger Agreement, and
WHEREAS, the Merger Agreement and the Shareholder Agreement were
agreed to in reliance upon the execution and delivery of this Agreement by the
Shareholders; and
WHEREAS, as a condition to the Merger Agreement, Paracelsus and the
Paracelsus Shareholder have requested that each Shareholder agree, and in order
to induce Paracelsus to enter into the Merger Agreement and the Paracelsus
Shareholder to enter into the Shareholder Agreement, each Shareholder has
agreed to take such actions in the respect to the shares of common stock, no
stated par value per share, of Paracelsus (the "Paracelsus Common Stock")
beneficially owned (as defined below) by him as of the date hereof or at any
time hereafter (the "Paracelsus Shares") as are provided herein, and the
Paracelsus Shareholder has agreed to vote the Paracelsus Shares beneficially
owned by it as provided herein;
NOW, THEREFORE, in consideration of the foregoing, and the
representations, warranties, covenants and agreements contained herein, and
intending to be legally bound, the parties hereto agree as follows:
1. Voting Agreements. Each Shareholder agrees to vote, or cause to be voted,
all Paracelsus Shares beneficially owned by him and his respective affiliates
and associates (as defined below) (i) with the Paracelsus Shareholder to
approve any approved Shareholder Proposal (as such term is defined in the
Shareholder Agreement) of the Paracelsus Shareholder and any related actions
contemplated by such Shareholder Proposal or that may be required in
furtherance thereof (including without limitation voting against any action,
agreement or transaction that may impede, interfere with, delay or otherwise
adversely affect any such approved Shareholder Proposal as determined by the
Paracelsus Shareholder) and (ii) as the Paracelsus Shareholder is required to
vote under the provisions of the Shareholder Agreement with respect to any
Shareholder Proposal and any Approved Acquisition Proposal (as such term is
defined in the Shareholder Agreement).
2. Agreement to Sell Shares. Each of the Shareholders hereby agrees to sell,
or cause to be sold (including by tender or otherwise), all Paracelsus Shares
beneficially owned by him and his respective affiliates and associates (a) to
the Paracelsus Shareholder in any approved Shareholder Proposal for which such
Shareholders are required to vote under Section 1(a)(i) above, upon the terms
and conditions contemplated by such Shareholder Proposal; and (b) to the
acquiror under any Approved Acquisition Proposal for which such
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Shareholders are required to vote under Section 1(a)(ii) above, upon the terms
and conditions contemplated by such Approved Acquisition Proposal.
3. Term of Agreement. This Agreement shall remain in effect for so long as
the provisions of Section 7 of the Shareholder Agreement with respect to
Shareholder Proposals and Approved Acquisition Proposals are in effect in
accordance with its terms with respect to the Paracelsus Shareholder under the
Shareholder Agreement.
4. Representations and Warranties. Each Shareholder hereby represents and
warrants to the Paracelsus Shareholder as follows:
(a) Authority Relative to this Agreement. Such Shareholder 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 Shareholder and this Agreement
constitutes a valid and binding agreement of such Shareholder, enforceable
against such Shareholder in accordance with its terms.
(b) Ownership of Shares. Such Shareholder beneficially owns all of
shares of Paracelsus Common Stock indicated opposite such Shareholder's name on
Exhibit A hereto, which constitute all the shares of Paracelsus Common Stock
beneficially owned by such Shareholder or subject to options beneficially owned
by him as of the date hereof. Except pursuant to the Right of First Refusal
Agreement dated August 16, 1996, by and among the Paracelsus Shareholder, Dr.
Manfred George Krukemeyer, Mr. R.J. Messenger, Mr. Ronald R. Patterson and the
Shareholders, there are no other restrictions on the voting rights or rights of
disposition pertaining to such shares of Paracelsus Common Stock beneficially
owned by such Shareholder.
(c) No Conflicts. Neither the execution and delivery of this
Agreement nor the consummation by such Shareholder 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 Shareholder is a party or by which such Shareholder is
bound.
5. Representations and Warranties of the Paracelsus Shareholder. The
Paracelsus Shareholder hereby represents and warrants to the Shareholders as
follows:
(a) Authority Relative to this Agreement. The Paracelsus Shareholder
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 the Paracelsus Shareholder and,
assuming that this Agreement has been duly and validly authorized, executed and
delivered by each Shareholder, this Agreement constitutes a valid and binding
agreement of the Paracelsus Shareholder, enforceable against the Paracelsus
Shareholder in accordance with its terms.
6. No Inconsistent Agreements. Each of the Shareholders hereby agrees,
without the prior written consent of the Paracelsus Shareholders, except
pursuant to the terms hereof, not to (i) grant any proxies, deposit any
Stockholder Shares into a voting trust or enter into a voting agreement with
respect to any Stockholders Shares that would prevent or disable the
Shareholder from performing his obligations under this Agreement or (ii) take
any other action that would make any representation or warranty of the
Shareholder contained herein untrue or incorrect or have the
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effect of preventing or disabling the Shareholder from performing his
obligations under this Agreement.
7. Entire Agreement and Venue. 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 assigned by operation of law or otherwise without the
prior written consent of the other parties hereto, except that the Paracelsus
Shareholder may assign, in its sole discretion, all or any of its rights,
interests and obligations hereunder to any director or indirect wholly owned
subsidiary of Acquiror; (c) shall not be amended, altered or modified in any
manner whatsoever, except by a written instrument executed by all of the
parties hereto; and (d) shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of Texas (without giving
effect to the provisions thereof relating to conflicts of law). The parties
hereby irrevocably submit to the jurisdiction of the courts of the State of
Texas and the Federal courts of the United States of America located in the
State of Texas solely in respect of the interpretation and enforcement of the
provisions of this Agreement, and in respect of the transactions contemplated
hereby, and hereby waive, and agree not to assert, as a defense in any action,
suit or proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in said courts or that the
venue thereof may not be appropriate or that this Agreement or any such
document may not be enforced in or by such courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a Texas State or Federal court. The
parties hereby consent to and grant any such court jurisdiction over the person
of such parties and over the subject matter of such dispute and agree that
mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 12, shall be valid and sufficient
service thereof.
8. Remedies.
(a) Specific Performance. The parties acknowledge that it would
be impossible to fix money damages for violations of the provisions of this
Agreement (other than the obligation of the Paracelsus Shareholder to vote its
Paracelsus Shares under Section 1(b)(ii) above, which is solely covered by
Section 8(b) below) and that such violations will cause irreparable injury for
which adequate remedy at law is not available and, therefore, this Agreement
must be enforced by specific performance or injunctive relief. The parties
hereto agree that any party may, in its sole discretion, apply to any court of
competent jurisdiction for specific performance or injunctive or such other
relief as such court may deem just and proper in order to enforce this
Agreement or prevent any violation hereof and, to the extent permitted by
applicable law, each party waives any objection or defense to the imposition of
such relief. Nothing herein shall be construed to prohibit any party from
bringing any action for damages in addition to an action for specific
performance or an injunction for a breach of this Agreement.
(b) Liquidated Damages. In the event that the Paracelsus
Shareholder shall fail to discharge its obligation to vote its Paracelsus
Shares under Section 1(b)(ii) hereof, the Paracelsus Shareholder shall be
liable to each Shareholder who as of the date hereof beneficially owns options
outstanding as of the date hereof under the Founder's Stock Option Plan and
actually exercises such options in an amount equal to the difference between
(i) the reasonable costs actually incurred by any such holder in exercising any
or all of such options and (ii) the costs, if
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any, that would reasonably have been incurred by such holder with respect to
such exercise in the event the amendments referenced in Section 1(b) hereof had
been approved at the special meeting of Champion stockholders. The shareholders
sole remedy for the failure to discharge the obligation referenced in this
Section 8(b) will be the liquidated damages provided for in this Section 8(b).
9. 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 the Paracelsus Shareholder 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 the
Paracelsus Shareholder. 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.
10. 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.
11. Definitions. Unless the context otherwise requires, the following terms
shall have the following respective meanings:
(a) "beneficial owner" has the meaning set forth in Rule 13d-3(a)
and (b) of the Rules and Regulations to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and "beneficially owned" shall have a correlative
meaning; provided, however, that for purposes of this Agreement the Paracelsus
Shares beneficially owned by a person shall mean the Paracelsus Shares
beneficially owned by such person as of the date hereof, or beneficially owned
by such person at any time hereafter (including without limitation Paracelsus
Shares that may be acquired pursuant to the exercise of an option or other
right regardless of when such option is exercisable or by way of dividend,
distribution, exchange, merger, consolidation, recapitalization,
reorganization, stock split, grant of proxy or otherwise);
(b) "person" means a corporation, association, partnership, joint
venture, organization, business, individual, trust, estate or any other entity
or group (within the meaning of Section 13(d)(3) of the Exchange Act); and
(c) the terms "affiliates" and "associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 under the Exchange
Act.
12. 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
three business days after receipt 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 the Paracelsus Shareholder, to:
AM Natruper Holz 69
D-49076 Osnabruck
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Federal Republic of Germany
Facsimile: (011) 49-541-966-4006
Attention:
with a copy to:
R.J. Messenger
155 North Lake Avenue, Suite 1100
Pasadena, CA 91101
Facsimile: (818) 578-6380
and to:
Dr. Meyer zu Losebeck
Sozietat Dr. H. Mertens
Hasemauer 9
49074 Osnabruck, Germany
Facsimile: (011) 49-541-331-1616
(b) If to any of the Shareholders, to their respective addresses
noted on Exhibit A hereto.
13. 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.
14. 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.
15. Further Assurances. Each Shareholder 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PARK HOSPITAL GMBH
By: /s/ Dr. Manfred G. Krukemeyer
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Name: Dr. Manfred George Krukemeyer
Title: Chairman
SHAREHOLDERS:
/s/ Charles R. Miller
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Name: Charles R. Miller
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/s/ James G. VanDevender
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Name: James. G. Vandevender
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EXHIBIT A
NAME OF SHAREHOLDER NUMBER OF
AND SECURITIES AS OF
ADDRESS FOR NOTICE CLASS OF SECURITIES THE DATE HEREOF
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Charles R. Miller Common Stock 531,776 shares
515 West Greens Road Options to acquire Common Stock 543,250
Suite 800
Houston, TX 77067
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Total 1,075,026
James G. VanDevender Common Stock 62,666 shares
515 West Greens Road Options to acquire Common Stock 567,334
Suite 800
Houston, TX 77067
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Total 630,334