EXHIBIT 99.2
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ INDUCEMENT AGREEMENT
This AGREEMENT, dated this 14th day of March, 1997, is given by ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇., a Georgia resident ("▇▇▇▇▇▇▇"), to ▇▇▇▇▇ ▇▇▇▇▇, INC., a New
Jersey corporation having its principal place of business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ("VSI"),
WITNESSETH THAT
WHEREAS, ▇▇▇▇▇▇▇ is the principal shareholder of ▇▇▇▇▇▇▇ Healthcare,
Inc. ("▇▇▇▇▇▇▇ Healthcare");
WHEREAS, ▇▇▇▇▇▇▇ Healthcare is the principal shareholder of Marquest
Medical Products, Inc. ("Marquest");
WHEREAS, Marquest is in the process of negotiating an agreement with
VSI pursuant to which VSI would acquire Marquest by means of a cash merger (the
"Merger Agreement");
WHEREAS, ▇▇▇▇▇▇▇ is the owner of a promissory note of Marquest in the
principal amount of $700,000, which promissory note is convertible into a total
of 1,000,000 shares of Marquest Common Stock (the "Promissory Note");
WHEREAS, ▇▇▇▇▇▇▇ Healthcare has indicated that it will not vote its shares
of Marquest Common Stock in favor of the Merger Agreement, the merger
contemplated thereby (the "Merger") and the other transactions contemplated by
the Merger Agreement unless the shareholders of ▇▇▇▇▇▇▇ Healthcare authorize
▇▇▇▇▇▇▇ Healthcare to take such action and a related action involving the sale
of a product line by ▇▇▇▇▇▇▇ Healthcare to VSI (such authorization being
hereinafter referred to as the "▇▇▇▇▇▇▇ Shareholder Approval");
WHEREAS, VSI has advised ▇▇▇▇▇▇▇ that VSI will not enter into the
Merger Agreement unless ▇▇▇▇▇▇▇ executes and delivers this Inducement Agreement;
WHEREAS, ▇▇▇▇▇▇▇ desires to induce VSI to enter into the Merger
Agreement and acknowledges that VSI will rely upon this Inducement Agreement in
entering into the Merger Agreement; and
WHEREAS, contemporaneous with the execution of this Agreement, it is
contemplated that ▇▇▇▇▇▇▇ Healthcare, Marquest and VSI will enter into an
agreement, captioned the "▇▇▇▇▇▇▇ Healthcare Inducement Agreement" (the "▇▇▇▇▇▇▇
Healthcare Inducement Agreement"), pursuant to which the parties thereto will
make certain representations and covenants relating primarily to the Merger,
other matters contemplated by the Merger Agreement and a sale of assets to VSI,
NOW THEREFORE, to provide VSI with the inducements that it requires,
▇▇▇▇▇▇▇ hereby warrants and covenants to VSI as follows:
1. Representations of ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ hereby warrants and represents
to VSI as follows:
1.1 ▇▇▇▇▇▇▇ has (i) the sole power to vote and dispose of 1,688,361.5
shares of the Common Stock, par value $.01 per share, of ▇▇▇▇▇▇▇ Healthcare (the
"▇▇▇▇▇▇▇ Healthcare Common Stock") and (ii) the sole power to vote and shared
power to dispose of 562,594.5 shares of ▇▇▇▇▇▇▇ Healthcare Common Stock, which
shares are owned by the four adult children of ▇▇▇▇▇▇▇ and are subject to a
Voting Trust dated as of February 23, 1997 for which ▇▇▇▇▇▇▇ acts as the sole
trustee (the "Voting Trust"). The shares described in clause (i) above include
1,244,378.5 shares owned by RPS Investments, Inc., a corporation wholly-owned by
▇▇▇▇▇▇▇.
1.2 ▇▇▇▇▇▇▇ has not entered into any agreement which would preclude or
otherwise affect in any respect ▇▇▇▇▇▇▇'▇ ability to provide the representations
set forth in this Section 1 or the covenants set forth in Section 2 hereof.
▇▇▇▇▇▇▇ has not pledged or otherwise encumbered any of the shares of ▇▇▇▇▇▇▇
Healthcare Common Stock, or options or warrants to purchase ▇▇▇▇▇▇▇ Healthcare
Common Stock, that he owns. ▇▇▇▇▇▇▇ has the authority to execute this Agreement
with respect to all of the shares referenced in the first sentence of Section
1.1 hereof.
1.3 Intentionally omitted.
1.4 ▇▇▇▇▇▇▇ owns the Promissory Note free and clear of any security
interests, consignments, liens, judgments, encumbrances, restrictions, or claims
of any kind.
1.5 Each of the factual representations regarding ▇▇▇▇▇▇▇ set forth in
the "WHEREAS" clauses of this Agreement are accurate.
1.6 ▇▇▇▇▇▇▇ has no actual knowledge that any of the warranties and
representations made by Marquest to VSI in the Merger Agreement are inaccurate
in any material respect. It is understood that (i) this Section 1.6 shall not
survive the consummation of the Merger, (ii) ▇▇▇▇▇▇▇ shall not be liable for
monetary damages in the event that this Section 1.6 is inaccurate in any respect
and (ii) VSI's sole right in the event that it determines that this Section 1.6
is materially inaccurate either at the time that this Agreement is executed or
as of the time of the closing described in the Merger Agreement shall be for VSI
to assert its rights under the Merger Agreement to terminate the Merger
Agreement (in which case the transactions contemplated by the ▇▇▇▇▇▇▇ Healthcare
Inducement Agreement will not be consummated). . 2. Covenants of ▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇ hereby covenants and agrees with VSI as follows:
2.1 At the meeting of ▇▇▇▇▇▇▇ Healthcare's shareholders called to vote
upon the ▇▇▇▇▇▇▇ Shareholder Approval, ▇▇▇▇▇▇▇ will, subject to his fiduciary
obligations as a director of ▇▇▇▇▇▇▇ Healthcare, as a majority shareholder of
▇▇▇▇▇▇▇ Healthcare and as a trustee the Voting Trusts and subject to the receipt
by the Board of Directors of ▇▇▇▇▇▇▇ Healthcare of the "▇▇▇▇▇▇▇ Opinion" (as
defined in the ▇▇▇▇▇▇▇ Healthcare Inducement Agreement) at the times
contemplated by the ▇▇▇▇▇▇▇ Healthcare Inducement Agreement, vote all of the
shares of ▇▇▇▇▇▇▇ Healthcare Common Stock referenced in the first sentence of
Section 1.1 hereof and any other shares of ▇▇▇▇▇▇▇ Healthcare Common Stock that
he may acquire subsequent to the date hereto in favor of granting the ▇▇▇▇▇▇▇
Shareholder Approval.
2.2 Prior to the earlier of the Effective Time of the Merger (as
defined in the Merger Agreement) or the date of the termination of the Merger
Agreement, ▇▇▇▇▇▇▇ will not sell, dispose, pledge, encumber or otherwise
transfer any of the shares of ▇▇▇▇▇▇▇ Healthcare Common Stock referenced in
Section 1.1 hereof or any other shares of ▇▇▇▇▇▇▇ Healthcare Common Stock that
he may acquire subsequent to the date hereof or any right to acquire such stock;
provided, however, that this Section 2.2 shall not preclude ▇▇▇▇▇▇▇ from (a)
disposing of shares of ▇▇▇▇▇▇▇ Healthcare Common Stock if, after such transfer,
the outstanding shares of ▇▇▇▇▇▇▇ Healthcare Common Stock that he and his
"Permitted Transferees" (as defined herein) continue to own represent more than
50% of the outstanding ▇▇▇▇▇▇▇ Healthcare Common Stock calculated on a fully
diluted basis (after taking into account all shares of ▇▇▇▇▇▇▇ Healthcare Common
Stock issuable pursuant to outstanding stock options, warrants, convertible
securities and other contractual arrangements entitling third-parties to acquire
shares of ▇▇▇▇▇▇▇ Healthcare Common Stock) and (b) transferring any of his
shares of ▇▇▇▇▇▇▇ Healthcare Common Stock to a transferee (a "Permitted
Transferee") if, prior to such transfer, such Permitted Transferee executes an
agreement, in form and substance reasonably satisfactory to VSI, to vote such
shares in favor of the ▇▇▇▇▇▇▇ Shareholder Approval.
2.3 ▇▇▇▇▇▇▇ will not sell, give, devise, encumber, pledge or otherwise
transfer the Promissory Note or any interest therein unless and until the Merger
Agreement is terminated.
2.4 ▇▇▇▇▇▇▇ will not demand payment under the Promissory Note unless
and until the Merger Agreement is terminated.
2.5 At the Closing under the Merger but prior to the Effective Time of
the Merger, ▇▇▇▇▇▇▇ will convert the Promissory Note in the aggregate principal
amount of $700,000 into a total of 1,000,000 shares of Marquest Common Stock.
2.6 Upon consummation of the "Scheduled Asset Closing" (as such term
is defined in an agreement of even date herewith (captioned as the ▇▇▇▇▇▇▇
Healthcare Inducement Agreement) executed by ▇▇▇▇▇▇▇ Healthcare, Marquest and
VSI and referred to herein as the "▇▇▇▇▇▇▇ Healthcare Inducement Agreement"),
▇▇▇▇▇▇▇ agrees to execute and deliver to VSI a covenant against competition in
the form of the covenant against competition annexed hereto as Exhibit A in
exchange for a payment of one hundred and forty thousand dollars ($140,000).
3. Notices. Any notices, requests, demands and other communications to
VSI required or permitted hereunder shall be in writing and shall be deemed to
have been duly given when delivered by hand or when mailed by registered or
certified mail, postage prepaid, or when given by telex or facsimile
transmission (promptly confirmed in writing), as follows:
▇▇▇▇▇ ▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇, ext. 371
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇, Esq.
General Counsel
▇▇▇▇▇ ▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇, ext 372
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
and with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇▇, Sandler, Kohl,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
or to such other persons as VSI shall designate to ▇▇▇▇▇▇▇ in writing.
4. Assignment. This Agreement and all of the provisions hereof shall
be binding upon ▇▇▇▇▇▇▇ and shall inure to the benefit of VSI and its successors
and permitted assigns, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by VSI without the prior
written consent of ▇▇▇▇▇▇▇.
5. Governing Law. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with the laws of
the State of Delaware.
6. Headings and References. The headings of the Sections of this
Agreement are inserted for convenience of reference only and shall not
constitute a part hereof. All references herein to Sections are to sections of
this Agreement, unless otherwise indicated.
7. Interpretation; Definitions. ▇▇▇▇▇▇▇ does not intend for this
Agreement to be construed against VSI merely by virtue of the fact that VSI's
representatives drafted this Agreement. Capitalized terms not defined herein
shall have the definitions given to such terms in the Merger Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first set forth above.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
By execution of this Agreement, ▇▇▇▇▇ ▇▇▇▇▇, Inc. agrees only that (i)
upon consummation of the Scheduled Asset Closing and delivery by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇. of the covenant against competition provided for in Section 2.6 of
this Agreement, ▇▇▇▇▇ ▇▇▇▇▇, Inc. shall deliver to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. a
certified or bank cashier's check in an amount equal to one hundred and forty
thousand dollars ($140,000) and (ii) the limitations on VSI's rights described
in Section 1.6 of this Agreement are accepted by ▇▇▇▇▇ ▇▇▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Executive Vice President
The undersigned agrees that its shares of ▇▇▇▇▇▇▇ Healthcare Common
Stock shall be voted in the manner, and subject to the conditions, described in
Section 2.1 of this Agreement.
RPS INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
