Attached files
| file | filename |
|---|---|
| 8-K - Center for Wound Healing, Inc. | v198413_8k.htm |
| EX-99.1 - Center for Wound Healing, Inc. | v198413_ex99-1.htm |
| EX-22.1 - Center for Wound Healing, Inc. | v198413_ex22-1.htm |
Exhibit
22.2
VOTING
AGREEMENT
THIS VOTING AGREEMENT (this
“Agreement”) is dated as of October 5, 2010, by and among CFWH HOLDING
CORPORATION, a Delaware corporation (“Parent”), CFWH MERGER SUB, INC, a Nevada
corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), and the
other parties signatory hereto (each, a “Stockholder”).
RECITALS
WHEREAS, each Stockholder desires that
The Center For Wound Healing, Inc., a Nevada corporation (the “Company”), Parent
and Merger Sub enter into an Agreement and Plan of Merger dated as of the date
hereof (as the same may be amended or supplemented, the “Merger Agreement”) with
respect to the merger of Merger Sub with and into the Company (the “Merger”);
and
WHEREAS, each Stockholder is executing
this Agreement as an inducement to Parent to enter into and execute, and to
cause Merger Sub to enter into and execute, the Merger Agreement;
and
WHEREAS, Parent and certain of the
Stockholders are parties to a Rollover Contribution Agreement dated as of the
date hereof (the “Rollover Contribution Agreement”), pursuant to which certain
of such Stockholders’ Shares (as hereinafter defined) will be exchanged for
shares of preferred stock of Parent immediately prior to the Effective Time (as
defined in the Merger Agreement); and
WHEREAS, simultaneously with the
execution and delivery of this Agreement, Bison Capital Equity Partners II-A,
L.P., a Delaware limited partnership, and Bison Capital Equity Partners II-B,
L.P., a Delaware limited partnership (collectively, “Bison”), is executing and
delivering a Waiver, substantially in the form of Exhibit A hereto
(“Bison Waiver”), pursuant to which Bison agrees to waive certain rights under
that certain Voting Agreement dated as of March 31, 2008 (“Bison Voting
Agreement”) among Bison, the Company and the stockholders of the Company parties
thereto, including certain of the Stockholders.
NOW, THEREFORE, in consideration of the
execution and delivery by Parent and Merger Sub of the Merger Agreement and the
mutual covenants, conditions and agreements contained herein and therein, the
parties agree as follows:
1. Representations and
Warranties. Each Stockholder individually as to himself,
herself or itself, and not jointly, represents and warrants to Parent and Merger
Sub as follows:
1.1 Such
Stockholder is the record and beneficial owner of the number of shares of Common
Stock, $0.001 par value per share (the “Company Stock”) of the Company set forth
opposite such Stockholder’s name on Schedule A hereto (as
may be adjusted from time to time pursuant to Section 5, such Stockholder’s
“Shares”), other than Shares indicated to be held in “street name” as shown on
Schedule A
hereto. Except for such Stockholder’s Shares, such Stockholder is not
the record or beneficial owner of any shares of capital stock of the Company,
other than options to acquire shares of Company Stock granted to such
Stockholder under the Company’s 2006 Stock Option Plan. If any such
Stockholder holding such options exercises such options while this Agreement is
in effect, such Stockholder agrees that all shares of Company Stock acquired by
reason of the exercise of such options, without further action on the part of
such Stockholder, shall become subject to the terms and provisions of this
Agreement.
1.2 Assuming
the execution and delivery by Bison of the Bison Waiver, such Stockholder has
full power and authority to execute and deliver this Agreement, and, assuming
that the Bison Voting Agreement is terminated effective as of the time of the
consummation of such sale or transfer, full power and authority to sell or
transfer the Shares and to receive consideration in exchange for the Shares as
set forth in the Merger Agreement or the Rollover Contribution Agreement, as
applicable. This Agreement has been executed and delivered by such
Stockholder and constitutes the legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its
terms. Assuming the execution and delivery by Bison of the Bison
Waiver, neither the execution and delivery of this Agreement nor the
consummation by such Stockholder of the transactions contemplated hereby will
result in a violation of, or a default under, or conflict with, any contract,
trust, commitment, agreement, understanding, arrangement or restriction of any
kind to which such Stockholder is a party or bound or to which such
Stockholder’s Shares are subject. Assuming the execution and delivery
by Bison of the Bison Waiver, consummation by such Stockholder of the
transactions contemplated by this Agreement will not violate, or require any
consent, approval, or notice under, any provision of any judgment, order,
decree, statute, law, rule or regulation applicable to such Stockholder or such
Stockholder’s Shares.
1.3 Such
Stockholder’s Shares and the certificates representing such Shares are now and
at all times during the term hereof will be held by such Stockholder, or by a
nominee or custodian for the benefit of such Stockholder, free and clear of all
liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any such encumbrances or proxies arising hereunder and the terms and provisions
of the Bison Voting Agreement.
1.4 Other
than as set forth in Section 3.20 of the Merger Agreement with respect to the
Company, no broker, investment banker, financial adviser or other person is
entitled to any broker’s, finder’s, financial adviser’s or other similar fee or
commission from Parent, Merger Sub or the Company in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf of
such Stockholder.
1.5 Such
Stockholder understands and acknowledges that Parent is entering into, and
causing Merger Sub to enter into, the Merger Agreement in reliance upon such
Stockholder’s execution and delivery of this Agreement. Such
Stockholder acknowledges that the irrevocable proxy set forth in Section 3 is
granted in consideration for the execution and delivery of the Merger Agreement
by Parent and Merger Sub.
2
2. Covenants. Each
Stockholder severally, and not jointly, agrees with, and covenants to, Parent
and Merger Sub as follows:
2.1 Such
Stockholder shall not, except as contemplated by the terms of this Agreement,
(a) transfer (which term shall include, without limitation, for the purposes of
this Agreement any sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of such Stockholder’s Shares or any interest therein,
(b) enter into any contract, option or other agreement or understanding with
respect to any transfer of any or all of such Shares or any interest therein,
(c) grant any proxy, power-of-attorney or other authorization or consent in or
with respect to such Shares, (d) deposit such Shares into a voting trust or
enter into a voting agreement or arrangement with respect to such Shares, or (e)
take any other action that would in any way restrict, limit or interfere with
the performance of his, her or its obligations hereunder or the transactions
contemplated hereby.
2.2 Such
Stockholder (in Stockholder’s capacity as such) shall, at every meeting of the
stockholders of the Company called, and at every adjournment or postponement
thereof, and on every action or approval by written consent of the stockholders
of the Company, appear at the meeting or otherwise cause the Shares to be
present thereat for purposes of establishing a quorum and, to the extent not
voted by the persons appointed as proxies pursuant to this Agreement, vote (i)
in favor of approval of the Merger, the Merger Agreement and the other
transactions contemplated thereby (collectively, the “Proposed Transaction”),
(ii) against the approval or adoption of any proposal made in opposition to, or
in competition with, the Proposed Transaction, and (iii) against any of the
following (to the extent unrelated to the Proposed Transaction): (A) any merger,
consolidation or business combination involving the Company or any of its
Subsidiaries other than the Proposed Transaction; (B) any sale, lease or
transfer of all or substantially all of the assets of the Company or any of its
Subsidiaries; (C) any reorganization, recapitalization, dissolution, liquidation
or winding up of the Company or any of its Subsidiaries; or (D) any other action
that is intended, or could reasonably be expected to result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or of Stockholder under this Agreement or
otherwise impede, interfere with, delay, postpone, discourage or adversely
affect the consummation of the Proposed Transaction.
2.3 If
Stockholder is the beneficial owner, but not the record holder, of the Shares,
Stockholder agrees to take all actions necessary to cause the record holder and
any nominees to vote all of the Shares in accordance with Section
2.2.
2.4 If
the holders of a majority of the issued and outstanding shares of Company Stock
are, or become, parties to this Agreement, then, not later than three calendar
days following the Company’s written request to do so, Stockholder will execute
and deliver to the Company a written consent with respect to all of such
Stockholders’ Shares, pursuant to which such Stockholder consents to the
adoption of resolutions approving the Proposed Transaction, including, but not
limited to, the adoption and approval of the Merger
Agreement.
3
2.5 Stockholder
(in Stockholder’s capacity as such) shall not directly or indirectly, (i)
solicit, initiate, encourage, induce or facilitate the making, submission or
announcement of any Acquisition Proposal (as defined in the Merger Agreement) or
take any action that could reasonably be expected to lead to an Acquisition
Proposal, (ii) furnish any information regarding any of the Company or any of
its Subsidiaries to any Person in connection with or in response to an
Acquisition Proposal or an inquiry or indication of interest that could
reasonably be expected to lead to an Acquisition Proposal, (iii) engage in
discussions or negotiations with any Person with respect to any Acquisition
Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v)
enter into any letter of intent or similar document or any Contract
contemplating or otherwise relating to any Acquisition Proposal.
2.6 If
the holders of the Company Stock approve the Merger Agreement, such
Stockholder’s Shares shall be exchanged for the consideration provided in the
Merger Agreement or the Rollover Contribution Agreement, as applicable, as set
forth in such agreements. Such Stockholder, as a result of having
agreed to vote in favor of the Merger, hereby waives any rights of appraisal, or
rights to dissent from the Merger, that such Stockholder may otherwise
have.
3. Grant of Irrevocable Proxy;
Appointment of Proxy.
3.1 Each
Stockholder hereby irrevocably grants to, and appoints, Parent, David Finley or
Gregg Osenkowski and any other individual who shall hereafter be designated by
Parent, such Stockholder’s proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such Stockholder, to vote
such Stockholder’s Shares, or grant a consent or approval in respect of such
Shares, at any meeting of shareholders of the Company or at any adjournment
thereof or in any other circumstances upon which their vote, consent or other
approval is sought in favor of the Merger, the execution and delivery of the
Merger Agreement and approval of the terms thereof, and each of the other
transactions contemplated by the Merger Agreement.
3.2 Such
Stockholder represents that any proxies heretofore given in respect of such
Stockholder’s Shares are not irrevocable, and that any such proxies are hereby
revoked.
3.3 Such
Stockholder hereby affirms that the irrevocable proxy set forth in this Section
3 is given in connection with the execution of the Merger Agreement, and that
such irrevocable proxy is given to secure the performance of the duties of the
Stockholder under this Agreement. Such Stockholder hereby further
affirms that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Such Stockholder hereby ratifies and
confirms all that such irrevocable proxy may lawfully do or cause to be done by
virtue hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 78.355 of the Nevada
Revised Statutes (“NRS”).
4. Certain
Events. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to such Stockholder’s Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation such Stockholder’s heirs, guardians, administrators or
successors. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of the
Company affecting the Company Stock, or the acquisition of additional shares of
the Company Stock or other securities or rights of the Company by any
Stockholder, the number of Shares listed on Schedule A
beside the name of such Stockholder shall be adjusted appropriately and this
Agreement and the obligations hereunder shall attach to any additional shares of
the Company Stock or other securities or rights of the Company issued to or
acquired by such Stockholder.
4
5. Stop
Transfer. The Company agrees with, and covenants to, Parent
that the Company shall not register the transfer of any certificate representing
any Stockholder’s Shares, unless such transfer is made in compliance with this
Agreement. In the event that this Agreement is terminated, the Company shall
remove such stop transfer order as soon as practicable.
6. Stockholder
Capacity. No person executing this Agreement who is or becomes
during the term hereof a director or officer of the Company makes any agreement
or understanding herein in his or her capacity as such director or
officer. Each Stockholder signs solely in his, her or its capacity as
the record holder and beneficial owner of such Stockholder’s Shares and nothing
herein shall limit or affect any actions taken by a Stockholder in his or her
capacity as an officer or director of the Company to the extent specifically
permitted by the Merger Agreement.
7. Further
Assurances. Each Stockholder shall, upon request of Parent or
Merger Sub, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by Parent or Merger Sub to be necessary or
desirable to carry out the provisions hereof and to vest the power to vote such
Stockholder’s Shares as contemplated by Section 3 in Parent and the other
irrevocable proxies described therein.
8. Termination. This
Agreement, and all rights and obligations of the parties hereunder, shall
terminate upon the earlier of (a) the date upon which the Merger Agreement is
terminated in accordance with its terms, or (b) the Effective Time (as defined
in the Merger Agreement).
9. Public
Announcements. Each Stockholder will consult with Parent
before issuing, and provide Parent with the opportunity to review and comment
upon, any press release or other public statements with respect to the
transactions contemplated by this Agreement and the Merger Agreement, and shall
not issue any such press release or make any such public statement prior to such
consultation, except as may be required by applicable law, court process or by
obligations pursuant to any listing agreement with any national securities
exchange.
10. Miscellaneous.
10.1 Capitalized
terms used and not otherwise defined in this Agreement shall have the respective
meanings assigned to such terms in the Merger Agreement.
10.2 All
notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be deemed given if delivered in the manner set
forth in Section 8.04 of the Merger Agreement and to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice): (a) if to Parent or Merger Sub, to the address set forth in
Section 8.04 of the Merger Agreement; and (b) if to a Stockholder, to the
address set forth on Schedule A hereto, or
such other address as may be specified in writing by such
Stockholder.
5
10.3 The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
10.4 This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective (even without
the signature of any other Stockholder) as to any Stockholder when one or more
counterparts have been signed by each of Parent, Merger Sub and such Stockholder
and delivered to Parent, Merger Sub and such Stockholder.
10.5 This
Agreement (including the documents and instruments referred to herein)
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
10.6 This
Agreement shall be governed by and construed in accordance with the Laws of the
State of New York (without giving effect to conflict of law principles thereof),
provided that any matters of corporate law related to the granting of the proxy
hereunder shall be governed by the NRS. Each of the parties hereto
(i) consents to submit itself to the exclusive personal jurisdiction of the
state and federal courts sitting in the County of New York, State of New York,
in the event any dispute arises out of this Agreement or any transaction
contemplated by this Agreement or other Transaction Documents, (ii) agrees
that it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (iii) agrees that it will
not bring any action relating to this Agreement or other Transaction Documents
or any transaction contemplated by this Agreement or other Transaction Documents
in any court other than any such court and (iv) waives any right to trial
by jury with respect to any action related to or arising out of this Agreement
or other Transaction Documents or any transaction contemplated by this Agreement
or other Transaction Documents. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby or thereby in any such court, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
10.7 Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise, by any of the parties without the prior written consent of the other
parties, except by laws of descent; provided that Parent may assign this
Agreement and its rights hereunder to an affiliate of Parent. Any
assignment in violation of the foregoing shall be void.
10.8 If
any term, provision, covenant or restriction herein, or the application thereof
to any circumstance, shall, to any event, be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions herein and the application thereof to any
other circumstances, shall remain in full force and effect, shall not in any way
be affected, impaired or invalidated, and shall be enforced to the fullest
extent permitted by law.
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10.9 Each
Stockholder agrees that irreparable damage would occur and that Parent and
Merger Sub would not have any adequate remedy at law in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that Parent and Merger Sub shall be entitled to an injunction or injunctions to
prevent breaches by any Stockholder of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of New York or in New York state court, this
being in addition to any other remedy to which Parent and Merger Sub are
entitled at law or in equity.
10.10 No
amendment, modification or waiver in respect of this Agreement shall be
effective against any party unless it shall be in writing and signed by such
party.
[Next
Page is Signature Page]
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IN WITNESS WHEREOF, Parent, Merger Sub
and the Stockholders have caused this Stockholders Agreement to be duly executed
and delivered as of the date first written above.
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CFWH
HOLDING CORPORATION.
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By:
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/s/
David E. Finley
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Name:
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David
E. Finley
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Title:
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President
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CFWH
MERGER SUB, INC.
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By:
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/s/
David E. Finley
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Name:
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David
E. Finley
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Title:
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President
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STOCKHOLDERS:
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/s/
Andrew G. Barnett
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Andrew
G. Barnett
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/s/
John V. Capotorto
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John
V. Capotorto, MD
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/s/
Philip Forman
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Philip
Forman, DPM
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/s/
David Walz
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David
Walz
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ACKNOWLEDGED
AND AGREED
TO AS TO
SECTION 5:
THE
CENTER FOR WOUND HEALING, INC.
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By:
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/s/
Andrew G. Barnett
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Andrew
G. Barnett
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Title:
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Chief
Executive Officer
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SIGNATURE
PAGE TO VOTING AGREEMENT
SCHEDULE
A
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Number
of Shares
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Stockholder Name and
Address
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of Company Stock
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Andrew
G. Barnett
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86,450 (held
in “street name” at Deutsche Bank)
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c/o
The Center For Wound Healing, Inc.
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||
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155
White Plains Road, Suite 200
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Tarrytown,
NY 10591
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John
V. Captorto, MD
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4,409,292
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c/o
The Center For Wound Healing, Inc.
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155
White Plains Road, Suite 200
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Tarrytown,
NY 10591
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Philip
Forman, DPM
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2,997,778
(of record)
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c/o
The Center For Wound Healing, Inc.
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1,063,570
(held in “street name” at Fordham Financial Management)
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155
White Plains Road, Suite 200
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Total:
4,061,348
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Tarrytown,
NY 10591
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David
Walz
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90,999
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c/o
The Center For Wound Healing, Inc.
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155
White Plains Road, Suite 200
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Tarrytown,
NY 10591
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S-1