September 20, 2005
Netsmart
Technologies, Inc.
and Hayes
Acquisition Corp.
3500 Sunrise
Highway
Great River, NY
11739
Attn :
James Conway, CEO
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Re:
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Shareholders
Voting Agreement
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Gentlemen:
Reference is
made to that certain Agreement and Plan of Merger (the “
Merger Agreement ”), dated as of the date hereof, by
and among CMHC Systems, Inc., an Ohio corporation (“
CMHC ”), Hayes Acquisition Corp., an Ohio corporation
(“ Acquisition ”), Netsmart Technologies, Inc.,
a Delaware corporation (“ Netsmart ”) and John
Paton, as Securities Holders’ Representative.
Unless
otherwise indicated or specifically defined, all capitalized terms
used herein shall have the meaning ascribed to them in the Merger
Agreement.
This letter
agreement is the Shareholders Voting Agreement described in Section
5.4 of the Merger Agreement. As an essential condition and
inducement to Netsmart and Acquisition to enter into the Merger
Agreement and in consideration therefor, the undersigned
(hereinafter the “Shareholder”) has agreed to enter
into this letter agreement.
To that end, in
consideration of the foregoing and the mutual covenants and
agreements contained herein and in the Merger Agreement, and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. Voting of Shares .
(a) Voting Agreement . The Shareholder is beneficial owner of, or
has sole voting power or control with respect to, 700,000 issued
and outstanding CMHC Shares (such shares, together with all CMHC
Shares issued to, or otherwise beneficially owned by, the
Shareholder after the date hereof or as to which voting power or
control is hereafter acquired by the Shareholder are hereinafter
called the “ Covered Shares ”). The Shareholder
hereby agrees, during the period commencing on the date hereof and
continuing until termination in accordance with Section 4
hereof (the “ Voting Period ”), (i) to appear or
cause the holder of record of the Covered Shares on any applicable
record date (the “ Record Holder ”) to appear
for the purpose of obtaining a quorum at any annual or special
meeting of shareholders of CMHC and at any adjournment thereof at
which matters relating to the Merger, the Merger Agreement, or any
transaction contemplated by the Merger Agreement are considered,
and (ii) to vote, or cause the Record Holder to vote, in person or
by proxy, at a meeting or by written consent, all of the Covered
Shares in favor of adopting and approving the Merger, the Merger
Agreement and the transactions contemplated by the Merger
Agreement.
(b) Grant of Proxy .
(i) The Shareholder hereby appoints Netsmart and
any designee of Netsmart, and each of them individually, as the
Shareholder’s proxy and attorney-in-fact, with full power of
substitution and resubstitution, to vote or act by written consent
during the Voting Period with respect to the Covered Shares in
accordance with Section 1(a) , including voting in favor of
adopting and approving the Merger, the Merger Agreement and the
transactions contemplated by the Merger Agreement. The Shareholder
shall promptly cause a copy of this letter agreement to be
deposited with CMHC at its principal place of business. The
Shareholder shall take such further action and execute such other
instruments as may be necessary to effectuate the intent of this
proxy. Notwithstanding the foregoing, in the event that Netsmart or
its designee is unable or declines to exercise the power and
authority granted by this proxy for any reason or requests the
Shareholder to vote or act by written consent in respect of the
Covered Shares in accordance with Section 1(a) , the
Shareholder shall be entitled to vote or act by written consent
during the Voting Period with respect to the Covered Shares in
accordance with Section 1(a) .
(ii) The proxy and power of attorney granted
pursuant to this Section 1(b) by the undersigned shall be
irrevocable during the Voting Period, shall be deemed to be
coupled with an interest sufficient in law to support an
irrevocable proxy and shall revoke any and all prior proxies
granted by the undersigned. The power of attorney granted by the
Shareholder herein is a durable power of attorney and shall survive
the dissolution, bankruptcy, death or incompetency of the
Shareholder. The proxy and power of attorney granted hereunder
shall terminate as provided in Section 4 .
(iii) Notwithstanding anything in this letter
agreement to the contrary, neither Netsmart nor any designee of
Netsmart shall have any rights to vote, or to direct the exercise
of any rights to vote, any of the Covered Shares in the election of
directors of CMHC.
(c) No Inconsistent Agreements
. The Shareholder hereby covenants
and agrees that, except as contemplated by this letter agreement
and the Merger Agreement and except as disclosed in the Schedules
to the Merger Agreement, the Shareholder (i) has not entered, and
shall not enter at any time during the Voting Period, into any
voting agreement in respect of the Covered Shares, and (ii) has not
granted, and shall not grant at any time during the Voting Period,
a proxy or power of attorney in respect of the Covered Shares, in
either case which is inconsistent with this letter
agreement.
(d) No Transfer of Shares . The Shareholder hereby covenants and agrees
that, during the Voting Period, the Shareholder shall not, either
directly or indirectly, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of (collectively, a “
Transfer ”), or enter into any contract, option or
other agreement with respect to, or consent to, a Transfer of any
or all of the Covered Shares or any other securities or rights
convertible into or exchangeable for the Covered Shares. The
Shareholder hereby agrees and consents to the entry of stop
transfer instructions by
