This VOTING
AGREEMENT (this “ Agreement ”) is entered into
as of October ___, 2009, by and between Brickell Bay Acquisition
Corp., a Delaware corporation (“ Parent ”), and
[___] (“ Stockholder ”), in its capacity as a
stockholder of Allion Healthcare, Inc., a Delaware corporation (the
“ Company ”).
A. Parent,
Brickell Bay Merger Corp., a Delaware corporation and wholly-owned
subsidiary of Parent (“ Merger Sub ”), and the
Company are entering into an Agreement and Plan of Merger of even
date herewith (as the same from time to time may be modified,
supplemented or restated, the “ Merger Agreement
”), providing for the merger of Merger Sub with and into the
Company, with the Company as the Surviving Corporation of the
merger. Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to such terms
in the Merger Agreement.
B. Stockholder
is the record holder and full beneficial owner of the number, type,
class and series of shares of the Company’s Common Stock set
forth on Exhibit A hereto (such shares of Common
Stock, together with all other shares of the Company’s Common
Stock acquired by Stockholder after the date hereof and during the
term of this Agreement (including as such shares may be adjusted by
any stock dividend, stock split, recapitalization, combination or
other similar transaction) being collectively referred to herein as
the “ Subject Shares ”).
C. The
execution and delivery of this Agreement by Stockholder is a
material inducement to the willingness of Parent to enter into the
Merger Agreement.
D. Stockholder
understands and acknowledges that the Company and Parent are
entitled to rely on (i) the truth and accuracy of
Stockholder’s representations contained in this Agreement and
(ii) Stockholder’s performance of the obligations set forth
herein.
NOW, THEREFORE, in
consideration of the premises and the covenants and agreements set
forth in the Merger Agreement and in this Agreement, and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
1.
Representations, Warranties and Covenants of Stockholder .
Stockholder hereby represents, warrants and covenants to Parent as
follows:
(a) Stockholder
is the beneficial owner (as determined pursuant to Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended
(the “ Exchange Act ”)) of, and exercises voting
power over, the Subject Shares, free and clear of all Liens.
Stockholder does not own of record or beneficially any shares of
capital stock of the Company other than the Subject Shares
(excluding shares as to which Stockholder currently disclaims
beneficial ownership in accordance with applicable law).
(b) Stockholder
has all requisite contractual power, capacity and authority
necessary to execute and deliver this Agreement, to consummate the
transactions contemplated hereby, and to perform
Stockholder’s obligations hereunder. This Agreement has been
duly executed and delivered by Stockholder and constitutes a legal,
valid and binding obligation of Stockholder, enforceable against
Stockholder in accordance with its terms. Stockholder has received
a copy of the Merger Agreement, has reviewed this Agreement, the
Merger Agreement and the other agreements and documents
contemplated hereby and thereby with representatives of the Company
and with Stockholder’s business and legal
advisors.
Stockholder acknowledges that this Agreement provides for the
Subject Shares to be voted in favor of the Merger and the other
transactions contemplated by the Merger Agreement. Stockholder
understands and acknowledges that its execution and delivery of
this Agreement is a material inducement to Parent’s
willingness to enter into, and to cause Merger Sub to enter into,
the Merger Agreement.
(c) Neither
the execution, delivery or performance of this Agreement, nor
compliance by Stockholder with any of the provisions hereof, with
or without the giving of notice or the lapse of time, or both,
shall result in (a) a breach of, or a default under, any term
or provision of any agreement to which Stockholder is a party or by
which Stockholder’s assets (including any of the Subject
Shares) are bound, (b) a violation by Stockholder of any
applicable Law, or (c) an imposition of any Lien on the
Subject Shares.
2.
Restrictions on Subject Shares . Until the Expiration Date
(as defined below), subject to the terms and conditions contained
herein and in the Merger Agreement:
(a) Stockholder
shall not, except as contemplated by the terms of the Merger
Agreement, directly or indirectly (i) sell, sell short,
transfer (with or without consideration), exchange, pledge or
otherwise encumber, assign or otherwise dispose of, or enter into
any contract, agreement, option or other arrangement or
understanding with respect to the sale, transfer (with or without
consideration), pledge, exchange, assignment or other disposition
of, the Subject Shares (and any capital stock Stockholder otherwise
controls or has voting rights with respect thereto) to any person
other than Parent or its designee, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust,
power-of-attorney or otherwise, with respect to the Subject Shares
(and any capital stock Stockholder otherwise controls or has voting
rights with respect thereto), or (iii) take any other action
that would in any way restrict, limit, hinder or interfere with the
performance by the Company of its obligations under the Merger
Agreement or the Transactions, or in any way restrict, limit,
hinder or interfere with the Transactions. From and after the date
of this Agreement through the term of this Agreement, Stockholder
agrees not to request the Company to register or otherwise
recognize the transfer (book-entry or otherwise) of any Subject
Shares or any certificate or uncertificated interest representing
any of Stockholder’s Subject Shares.
(b) Stockholder
shall not, directly or indirectly, take any action that would make
any representation or warranty contained herein untrue or incorrect
or have the effect of impairing the ability of Stockholder to
perform its obligations under this Agreement.
As used herein,
the term “ Expiration Date ” means the earlier
of (i) the Effective Time and (ii) the date and time of
the valid termination of the Merger Agreement in accordance with
its terms.
3.
Agreement to Vote Subject Shares . Prior to the Expiration
Date, Stockholder, in its capacity as a stockholder of the Company,
agrees as follows:
(a) At
any meeting (whether annual or special and whether or not adjourned
or postponed) of the stockholders of the Company, however called,
Stockholder shall appear at the meeting or otherwise cause the
Subject Shares (and any capital stock Stockholder otherwise
controls or has voting rights with respect thereto) to be counted
as present at such meeting for purposes of establishing a quorum
and vote (or cause to be voted) such shares (i) in favor of
the Merger Agreement and all the Transactions, (ii) against
any merger, consolidation, combination, sale of substantial assets,
reorganization, recapitalization, dissolution, liquidation or
winding up of or by the Company or any other Acquisition Proposal
(other than the Merger Agreement and the Transactions or, from the
date hereof until the time of the Stockholder’s Meeting to
approve the Merger and the Transactions, a Superior Proposal
subject to and in accordance with Section 5.09 of the Merger
Agreement) or any other action or agreement that would
2
result in a
breach of any covenant, representation or warranty or any other
obligation of the Company or Stockholder under this Agreement, the
Merger Agreement, or any other agreement contemplated hereby or
thereby or which would reasonably be expected to result in any of
the conditions of the Company’s or Stockholder’s under
any such agreement not being fulfilled, and (iii) against any
amendment of the Company’s governing documents, or other
proposal or transaction involving the Company or any of its
subsidiaries, which amendment or other proposal or transaction
would in any manner impede, frustrate, delay, prevent or nullify
the Merger Agreement or the Transactions.
(b) Stockholder
further agrees that, until the termination of this Agreement,
Stockholder will not, and will not permit any entity under
Stockholder’s control to, (i) solicit proxies or become
a “participant” in a “solicitation” (as
such ter
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