Exhibit 99.1
TENDER AND VOTING
AGREEMENT
THIS TENDER AND VOTING AGREEMENT
(this “ Agreement ”), dated as of June 7,
2009 (this “ Agreement ”), among HealthTronics,
Inc., a Georgia corporation (“ Parent ”), and
the persons listed on Schedule A hereto (each, a
“ Stockholder ” and collectively, the “
Stockholders ”).
RECITALS
A. Parent, HT Acquisition, Inc., a
Delaware corporation and a wholly-owned subsidiary of Parent
(“ Merger Sub ”), and Endocare, Inc., a Delaware
corporation (the “ Company ”), propose to enter
into an Agreement and Plan of Merger dated as of even date herewith
(as the same may be amended or supplemented, the “ Merger
Agreement ”; capitalized terms used but not defined
herein shall have the meanings set forth in the Merger Agreement)
providing for the Offer and the Merger in accordance with the terms
thereof.
B. Each Stockholder owns the number
of Company Shares set forth opposite its name on
Schedule A hereto (such Company Shares, together with
any other Company Shares acquired by such Stockholder, as record
holder thereof, after the date hereof and during the term of this
Agreement, being collectively referred to herein as the “
Subject Shares ” of such Stockholder).
C. As a condition to its willingness
to enter into the Merger Agreement, Parent has requested that the
Stockholders enter into this Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto
agree as follows:
Section 1. Representations
and Warranties of the Stockholders . Each Stockholder hereby
represents and warrants to Parent, solely as to such Stockholder,
as follows:
(a) Authority; Execution and
Deliver; Enforceability . The Stockholder has all requisite
power and authority to execute this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by the
Stockholder of this Agreement and consummation of the transactions
contemplated hereby have been duly authorized by all necessary
action on the part of such Stockholder. The Stockholder has duly
executed and delivered this Agreement, and this Agreement
constitutes the legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with
its terms (subject to the effect of (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to rights of creditors generally and
(ii) rules of law and equity governing specific performance,
injunctive relief and other equitable remedies). The execution and
delivery by the Stockholder of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance
with the terms hereof will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time,
or both) under any provision of any Contract to which the
Stockholder is a party or by which any properties or assets of the
Stockholder are bound or, subject to the filings and other matters
referred to in the next sentence, any provision of any Order or
applicable Law applicable to the Stockholder or the properties or
assets of the Stockholder, except for any such
conflicts,
breaches, defaults or other occurrences that,
individually or in the aggregate, have not had and would not
reasonably be expected to have a material adverse effect on such
Stockholder’s ability to perform its obligations hereunder.
No notice to, authorization, approval, order, permit or consent of,
or registration, declaration or filing with (collectively referred
to as “ Consent ”), any Governmental Authority
is required to be obtained or made by or with respect to the
Stockholder in connection with the execution, delivery and
performance of this Agreement or the consummation of the
transactions contemplated hereby, other than such reports under
Section 16 of the Exchange Act as may be required in
connection with this Agreement and the transactions contemplated
hereby.
(b) The Subject Shares . The
Stockholder is the record and beneficial (as defined in
Rule 13d-3 of the Exchange Act) owner of and has good and
marketable title to, the Subject Shares, free and clear of any
Encumbrances. The Stockholder does not own, of record or
beneficially (as defined in Rule 13d-3 of the Exchange Act),
any shares of Capital Stock of the Company other than (i) the
Subject Shares, (ii) restricted stock units, deferred stock
units and stock options issued pursuant to Company Stock Plans,
(iii) Capital Stock of the Company held by family trusts, of
which the Stockholder is the trustee and/or beneficiary, and
(iv) Capital Stock of the Company held by family members that
the Stockholder may be deemed to beneficially own. The Stockholder
has the sole right to vote the Subject Shares, and none of the
Subject Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of the
Subject Shares, except as contemplated by this
Agreement.
(c) Brokers . No broker,
investment banker, financial advisor or other person is entitled to
any broker’s, finder’s, financial advisor’s or
similar fee or commission in connection with the Offer, the Merger
and the other Transactions based upon arrangements made by or on
behalf of the Stockholder.
(d) Merger Agreement . The
Stockholder understands and acknowledges that Parent is entering
into, and causing Merger Sub to enter into, the Merger Agreement in
reliance upon the Stockholder’s execution and delivery of
this Agreement.
Section 2. Representations
and Warranties of Parent . Parent hereby represents and
warrants to the Stockholders as follows: Parent has all requisite
corporate power and authority to execute this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery by Parent of this Agreement and consummation of the
transactions contemplated hereby have been duly authorized by all
necessary action on the part of Parent. Parent has duly executed
and delivered this Agreement, and this Agreement constitutes the
legal, valid and binding obligation of Parent, enforceable against
Parent in accordance with its terms (subject to the effect of
(i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to rights of creditors generally and (ii) rules of
law and equity governing specific performance, injunctive relief
and other equitable remedies). The execution and delivery by Parent
of this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of, or default (with or
without notice or lapse of time, or both) under any provision of
any Contract to which Parent is a party or by which any properties
or assets of Parent are bound or, subject to the filings and other
matters referred to in the next sentence, any provision of any
Order or applicable Law applicable to Parent or the
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properties or assets of Parent, except for any
such conflicts, breaches, defaults or other occurrences that,
individually or in the aggregate, have not had and would not
reasonably be expected to have a material adverse effect on
Parent’s ability to perform its obligations hereunder. No
Consent of any Governmental Authority is required to be obtained or
made by or with respect to Parent in connection with the execution,
delivery and performance of this Agreement or the consummation of
the transactions contemplated hereby, other than such reports by
Parent under the Exchange Act as may be required in connection with
this Agreement and the transactions contemplated hereby.
Section 3. Agreement to
Tender and Vote; Other Covenants of the Stockholders . Each
Stockholder covenants and agrees with Parent, solely as to such
Stockholder, as follows:
(a) Agreement to Tender . The
Stockholder shall accept the Offer with respect to all the Subject
Shares of the Stockholder and tender all the Subject Shares of the
Stockholder pursuant to the Offer as promptly as practicable after
the commencement of the Offer, but in any event not later than the
10th Business Day after the commencement of the Offer. The
Stockholder shall not withdraw any Subject Shares tendered pursuant
to the Offer unless the Offer shall have been terminated in
accordance with the terms of the Merger Agreement.
(b) Agreement to Vote . To
the extent that any Subject Shares are not purchased in the
Offer:
(1) In Favor of Merger . At
any meeting of the stockholders of the Company called to seek the
Company Stockholder Approval or at any postponement
