VOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into this 7th day of May, 2004 by
and among ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇ ("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), ▇▇▇▇▇
▇▇▇▇▇▇ ("Bensol"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), and each of the undersigned
shareholders of Critical Home Care, Inc. (collectively, "Reg D Investors").
WHEREAS, Critical Home Care, Inc., a Nevada corporation ("CHC"), RKDA,
Inc., a Michigan Corporation ("RKDA"), ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and others entered into
a certain Agreement and Plan of Merger of an even date hereof ("Merger
Agreement") wherein RKDA agreed to merge with a wholly owned subsidiary of CHC,
with RKDA being the surviving corporation;
WHEREAS, pursuant to the terms and provisions of the Merger Agreement,
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ exchanged all of the shares of stock in RKDA owned by them
for 21,300,000 shares of voting common stock of CHC;
WHEREAS, Bensol, ▇▇▇▇▇ and each of the Reg D Investors own voting
securities in CHC;
WHEREAS, as a material inducement to RKDA, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ entering
into the Merger Agreement and as a condition to RKDA, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
consummating the transactions contemplated thereunder, Bensol, ▇▇▇▇▇ and the Reg
D Investors agreed to vote their securities, or cause their securities to be
voted, for the election of directors of CHC in the manner set forth in this
Voting Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements herein contained, and for other valuable consideration, the parties
agree as follows:
1. Voting Agreement by ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇. Subject to applicable laws and
regulations, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ hereby agree that at each regular or special
meeting of the shareholders of CHC that occurs during the term of this Agreement
and at which the election of directors is submitted to the vote of the
shareholders, each of them will vote all of the voting securities in CHC owned
by them at the time of such vote for the same nominees to the Board of Directors
of CHC.
2. Voting Agreement by Bensol, ▇▇▇▇▇ and Reg D Investors. Subject to
applicable laws and regulations, Bensol, ▇▇▇▇▇ and the Reg D Investors hereby
agree that at each regular or special shareholder meeting that occurs during the
term of this Voting Agreement and at which the election of directors is
submitted to the vote of the shareholders, each of them will vote, or cause to
be voted, all or a sufficient percentage of the voting securities owned by them,
beneficially or of record, for all or some of the director nominees nominated by
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ so that at all times during the term of this Agreement a
majority of the board of directors of CHC consists of individuals nominated by
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇. If at any time during the term of this Voting Agreement,
either ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ (but not both) is a shareholder of CHC, then Bensol,
▇▇▇▇▇ and each of the Reg D Investors agree that this Voting Agreement shall
remain in full force and effect and that they shall vote their voting securities
in such a manner so that a majority of the board of directors consists of
individuals nominated by ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇, as applicable.
3. Term of Agreement. This Agreement shall become effective immediately
upon the closing of the transactions contemplated by the Merger Agreement and
shall continue in full force and effect until the earlier of: (a) the date that
neither ▇▇▇▇▇▇▇ nor ▇▇▇▇▇▇▇ are executive officers of CHC, (b) the date that
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ fail to collectively own (beneficially or of record) at
least ten (10%) percent of the outstanding voting securities of CHC, or (c) the
expiration of the maximum period of time that applicable law allows for a voting
agreement to remain in effect.
4. Stock Legend. Bensol, ▇▇▇▇▇ and the Reg D Investors agree that so long
as this Agreement remains in effect the Company may cause each certificate of
stock or other voting security now owned or hereafter acquired by them to bear
the following legend upon its face:
"THE RIGHT TO VOTE THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS LIMITED BY
AND SUBJECT TO THE TERMS AND PROVISIONS OF A VOTING AGREEMENT BETWEEN THE OWNER
OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND OTHER STOCKHOLDERS OF THE
COMPANY, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE CORPORATION. THE
TERMS AND PROVISIONS OF THE VOTING AGREEMENT ARE BINDING UPON ANY AND ALL
SUCCESSORS AND ASSIGNS AND SHALL REMAIN IN FULL FORCE AND EFFECT NOTWITHSTANDING
THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, HYPOTHICATION OR OTHER DISPOSITION OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE."
5. Acquisition of Additional Securities. The terms and provisions of this
Voting Agreement shall apply to any voting stock or other voting securities now
owned or hereafter acquired by the parties hereto, however acquired, and all of
such voting securities shall be subject to the terms and provisions of this
Voting Agreement in the same manner as they apply to the voting securities owned
by the parties at the time of their execution of this Voting Agreement.
6. Injunctive Relief. It is expressly agreed and acknowledged that a loss
arising from a breach of any provision under this Voting Agreement may not be
reasonably and equitably compensated by money damages. Therefore, the parties
agree that in the case of any such breach, the other party shall be entitled to
injunctive, specific enforcement and/or other extraordinary relief, which relief
shall be cumulative and in addition to any and all other remedies which may be
available by law or equity.
7. Successors Bound by Agreement. This Voting Agreement shall be binding
upon each party's successors, assigns, heirs, beneficiaries, devisees, personal
representatives, and successor trustees. The parties agree for themselves, their
heirs, personal representatives and successors, to do all acts necessary to
carry out the intents and purposes of this Voting Agreement.
8. Governing Law. This Voting Agreement shall be governed by and construed
in accordance with the laws of the State of Florida, notwithstanding the fact
that any party is or may hereafter become domiciled in a different state.
9. Waiver. The waiver of a breach of any provision of this Voting Agreement
by any party shall not operate or be construed as a waiver of any subsequent
breach. Each and every right, remedy and power hereby granted to any party or
allowed it by law shall be cumulative and not exclusive of any other.
10. Amendment of Agreement. This Voting Agreement may be altered or amended
in any of its provisions only by the unanimous written agreement of parties.
11. Further Actions. The parties agree to take all further actions and to
execute and deliver any further documents and instruments as may be requested by
legal counsel to the Company or otherwise necessary or appropriate in order to
carry out and effectuate the terms and provisions of this Voting Agreement.
12. Interpretation of Agreement. Where appropriate in this Voting
Agreement, words used in the singular shall include the plural and words used in
the masculine shall include the feminine and the neuter.
13. Entire Agreement. This Voting Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes any and all other previous or contemporaneous communications,
representations, understandings, agreements, negotiations and discussions,
either oral or written, between or among the parties. The parties acknowledge
and agree that there are no written or oral agreements, understandings or
representations, directly or indirectly related to this Voting Agreement or any
subject matter hereof, that are not set forth herein.
14. Counterparts/Facsimile Signatures. This Voting Agreement may be
executed in a number of counterparts or facsimiles thereof, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Voting Agreement
effective the day and year first above written.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
___________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
___________________________
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
___________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
"REG D INVESTORS"
▇▇▇▇ Partners
/s/
By: ___________________________
Its: ___________________________
Web Financial Corporation
/s/
By: ___________________________
Its: ___________________________
North Sound Legacy Fund LLC
/s/
By: ___________________________
Its: ___________________________
North Sound Legacy Institutional Fund LLC
/s/
By: ___________________________
Its: ___________________________
North Sound Legacy International Ltd
/s/
By: ___________________________
Its: ___________________________