UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
Manor Care, Inc.
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(Name of Issuer)
Common Stock, par value $.10 per share
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(Title of Class of Securities)
564-054-10-4
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(CUSIP Number)
Patricia Bowditch Copy to:
Realty Investment Company, Inc. W. Leslie Duffy, Esq.
8737 Colesville Road Cahill Gordon & Reindel
Suite 800 80 Pine Street
Silver Spring, Maryland 20910 New York, New York 10005
(301) 495-4400 (212) 701-3000
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
June 10, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box / /.
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7(b) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 5 Pages
Exhibit Index begins on Page 5
<PAGE>
SCHEDULE 13D
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CUSIP No. 564-054-10-4 Page 2 of 5 Pages
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1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSON (ENTITIES ONLY)
Stewart Bainum, Jr. IRS No. ###-##-####
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2 CHECK THE APPROXIMATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
PF, WC, BK
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
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7 SOLE VOTING POWER
NUMBER OF 129,495
SHARES ______________________________________________
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 5,347,497
EACH ______________________________________________
REPORTING
PERSON WITH 9 SOLE DISPOSITIVE POWER
9,962,506
----------------------------------------------
10 SHARED DISPOSITIVE POWER
5,347,497
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,310,003
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.04%
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14 TYPE OF REPORTING PERSON*
HC, CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
Page 2 of 5 Pages
<PAGE>
This Amendment No. 4 to Schedule 13D is being filed to amend Items 4
and 6 of the Schedule 13D.
Item 4. Purpose of Transaction
Item 4 is hereby amended and restated as follows:
On June 10, 1998, Manor Care, Inc., a Delaware corporation (the
"Company"), entered into an Agreement and Plan of Merger (the "Merger
Agreement") with Health Care and Retirement Corp., a Delaware corporation
("HCR"), and the Catera Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of HCR ("Merger Sub"). Pursuant to the Merger Agreement, the
Merger Sub will merge (the "Merger") with and into the Company and the Company
will become a wholly owned subsidiary of HCR. In accordance with the Merger
Agreement, holders of the common stock, par value $.10 per share (the "Common
Stock"), of the Company will receive for each share of Common Stock held, one
share of common stock, par value $.01 per share, of HCR.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
Item 6 is hereby amended and restated as follows:
On June 10, 1998 in connection with the Merger Agreement, a voting
agreement (the "Voting Agreement") was executed between Bainum Associates
Limited Partnership, MC Investments Limited Partnership, Mid Pines Associates
Limited Partnership, Realty Investment Company, Inc. (together the "13D
Entities"), the Stewart Bainum Declaration of Trust and the Jane Bainum
Declaration of Trust (together the "Trusts") and HCR with respect to the
15,180,508 shares of Common Stock owned of record in the aggregate by the 13D
Entities and 4,516,253 shares beneficially owned by the Trusts. Pursuant to the
Voting Agreement, the 13D Entities and the Trusts agreed, among other things, to
vote their shares of Common Stock and granted the Merger Sub and certain
officers thereof an irrevocable proxy to vote their shares of Common Stock (a)
in favor of the Merger, the adoption of and execution and delivery of the Merger
Agreement and the approval of the terms thereof and each of the other
transactions contemplated thereby and (b) against certain actions involving
Manor Care described in such Voting Agreement. The 13D Entities and the Trusts
also agreed not to offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any of their
shares of Common Stock, except under certain circumstances specified in the
Voting Agreement. The 13D Entities and the Trusts also agreed not to solicit or
respond to any inquiries or the making of any proposal by any person or entity
(other than HCR or any affiliate thereof) with respect to Manor Care that
constitutes or could reasonably be expected to lead to an Alternative
Transaction (as such term is defined within the Merger Agreement).
Item 7. Materials to Be Filed as Exhibits
Exhibit 1 Voting Agreement dated June 10, 1998 among Health Care and
Retirement Corporation, Bainum Associates Limited Partnership, MC
Investments Limited Partnership, Mid Pines Associates Limited
Partnership, Realty Investment Company, Inc., the Stewart Bainum
Declaration of Trust and the Jane L. Bainum Declaration of Trust.
Page 3 of 5 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
June 19, 1998
By: /s/ Stewart Bainum, Jr.
Name: Stewart Bainum, Jr.
Page 4 of 5 Pages
<PAGE>
EXHIBIT INDEX
Exhibit Description
1 Voting Agreement dated June 10, 1998 among Health Care and
Retirement Corporation, Bainum Associates Limited Partnership, MC
Investments Limited Partnership, Mid Pines Associates Limited
Partnership, Realty Investment Company, Inc., the Stewart Bainum
Declaration of Trust and the Jane L. Bainum Declaration of Trust.
Page 5 of 5 Pages
<PAGE>
EXHIBIT 1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 10, 1998 (the "Agreement"), between
the undersigned holders (collectively the "Holders" and each a "Holder") of
shares of the common stock, $.10 par value (the "Manor Care Common Stock"), of
MANOR CARE, INC., a Delaware corporation ("Manor Care"), and HEALTH CARE AND
RETIREMENT CORPORATION, a Delaware corporation ("HCR").
RECITALS
Manor Care, HCR and Catera Acquisition Corp., a Delaware corporation
and a wholly-owned subsidiary of HCR ("Merger Sub"), propose to enter into an
Agreement and Plan of Merger dated the date hereof (the "Merger Agreement";
capitalized terms not otherwise defined herein being used herein as therein
defined), pursuant to which Merger Sub would be merged (the "Merger") with and
into Manor Care, and each outstanding share of Manor Care Common Stock would be
converted into the right to receive shares ("HCR Shares") of HCR Common Stock;
As a condition of its entering into the Merger Agreement, HCR has
requested each Holder to agree, and each Holder has agreed, to enter into this
Agreement;
Prior to the date hereof, HCR and the Holders had no agreement,
arrangement or understanding (as such terms are used in Section 203 of the
Delaware General Corporation Law (the "DGCL")) for the purpose of acquiring,
holding, voting or disposing of shares of Manor Care Common Stock; and
In consideration for the agreements contained herein, prior to the
execution hereof, and prior to HCR becoming an "interested stockholder" for
purposes of Section 203 of the DGCL, the board of the directors of Manor Care
has approved this Agreement, the Merger Agreement and the transactions
contemplated hereby and thereby, including the agreement of the Holders to vote
as provided in Section 2 of this Agreement and not to transfer shares of Manor
Care Common Stock as provided in Section 5(B) of this Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. Representations and Warranties of the Holders. Each Holder, with
respect to itself and its Subject Securities, represents and warrants, severally
and not jointly, to HCR as follows:
A. Ownership of Securities. Each Holder is the record and/or
beneficial owner of the number of shares of Manor Care Common Stock (the
"Existing Securities") (together with any shares of Manor Care Common Stock
or other securities of Manor Care hereafter acquired by the Holder, the
"Subject Securities") set forth on the signature page to this Agreement,
with such authority or power concerning such shares as is described on
Schedule 1.A hereto with respect to such Holder. Such Holder does not
beneficially or of record own any securities of Manor Care on the date
hereof other than the Existing Securities. The Holder has sole voting power
and sole power to issue instructions with respect to the voting of the
Existing Securities, sole power of disposition, sole power of exercise and
the sole power to demand appraisal rights, except as described on Schedule
1.A, in each case with respect to all of the Existing Securities, except as
indicated on said Schedule and, on the date of the Manor Care Stockholders
Meeting (as defined in the Merger Agreement), will have the sole voting
power and power to issue instructions with respect to the voting of all of
such Holder's Subject Securities, the sole powers of disposition, exercise
and the sole power to demand appraisal rights, in each case with respect to
all of such Holder's Subject Securities, except as described on Schedule
1.A.
B. Power; Binding Agreement. Each Holder has the legal capacity, power
and authority to enter into and perform all of such Holder's obligations
under this Agreement. The execution, delivery and performance of this
Agreement by each Holder will not violate any other agreement relating to
the Subject Securities to which the Holder is a party, including, without
limitation, any voting agreement, shareholder's agreement, partnership
agreement or voting trust. This Agreement has been duly and validly
executed and delivered by such Holder and constitutes a valid and binding
agreement of such Holder, enforceable against such Holder in accordance
with its terms, except that (i) such enforcement may be subject to
applicable bankruptcy, insolvency or other similar laws, now or hereafter
in effect, affecting creditors' rights generally, and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
C. No Conflicts. No filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for
the execution of this Agreement by such Holder and the consummation by such
Holder of the transactions contemplated hereby and neither the execution
and delivery of this Agreement by such Holder nor the consummation by such
Holder of the transactions contemplated hereby nor compliance by such
Holder with any of the provisions hereof shall conflict with or result in
any breach of any applicable partnership or other organizational documents
applicable to such Holder, result in a violation or breach of, or
<PAGE>
constitute (with or without notice or lapse of time or both) a default (or
give rise to any third-party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which such Holder is a party or by which such
Holder's properties or assets may be bound or violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable
to such Holder or any of such Holder's properties or assets, except for any
such conflicts, breaches, defaults or violations as would not materially
impair such Holder's performance of its obligations hereunder.
D. No Liens. The Existing Securities are now and, at all times during
the term hereof, the Subject Securities will be held by such Holder, or by
a nominee or custodian for the benefit of such Holder, free and clear of
all liens, claims, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any encumbrances arising hereunder or as set forth
on Schedule 1.A.
E. Certain Representations. Each Holder covenants that, at or
immediately prior to the Effective Time, it will execute and deliver to
each of HCR and Manor Care a letter in substantially the form of Exhibit A
attached hereto. Each Holder acknowledges that the representations made in
such letter may, among other things, be relied upon by counsel in opining
that the Merger constitutes a reorganization within the meaning of Section
368(a) of the Internal Revenue Code.
2. Agreement to Vote Shares. At every meeting of the stockholders of
Manor Care called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders
of Manor Care with respect to any of the following, each Holder, severally and
not jointly, agrees that it shall vote or execute a written consent, with
respect to, as appropriate all the Subject Securities as to which it has power
to vote in any such vote or consent: (i) in favor of the Merger, the adoption of
and execution and delivery of the Merger Agreement and the approval of the terms
thereof and each of the other transactions contemplated by the Merger Agreement
and (ii) against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (1) any extraordinary
corporate transaction, including, but not limited to a merger, consolidation or
other business combination involving Manor Care or any of its subsidiaries
(other than IHH); (2) a sale, lease or transfer of a material amount of assets
of Manor Care or any of its subsidiaries (other than IHH) or a reorganization,
recapitalization, dissolution or liquidation of Manor Care or any of its
subsidiaries (other than IHH); (3) (a) any change in the majority of the board
of directors of Manor Care except as contemplated by this Agreement; (b) any
<PAGE>
material change in the present capitalization of Manor Care or any amendment of
Manor Care's Certificate of Incorporation; (c) any other material change in
Manor Care's corporate structure or business; or (d) any other action, which, in
the case of each of the matters referred to in clauses (a), (b), (c) or (d)
above, is intended, or could reasonably be expected, to impede, interfere with,
delay, postpone, discourage or materially adversely affect the consummation of
the Merger or the transactions contemplated by the Merger Agreement or this
Agreement.
3. IRREVOCABLE PROXY. EACH HOLDER HEREBY, SEVERALLY AND NOT JOINTLY,
GRANTS TO, AND APPOINTS MERGER SUB AND THE PRESIDENT OF MERGER SUB AND THE
TREASURER OF MERGER SUB, IN THEIR RESPECTIVE CAPACITIES AS OFFICERS OF MERGER
SUB, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO ANY SUCH OFFICE OF MERGER
SUB, AND ANY OTHER DESIGNEE OF MERGER SUB, EACH OF THEM INDIVIDUALLY, SUCH
HOLDER'S PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE OR
ACT BY WRITTEN CONSENT WITH RESPECT TO SUCH HOLDER'S SUBJECT SECURITIES IN
ACCORDANCE WITH SECTION 2 HEREOF. THIS PROXY IS COUPLED WITH AN INTEREST AND
SHALL BE IRREVOCABLE, AND EACH HOLDER WILL TAKE SUCH FURTHER ACTION OR EXECUTE
SUCH OTHER INSTRUMENTS AS MAY REASONABLY BE NECESSARY TO EFFECTUATE THE INTENT
OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY IT WITH RESPECT
TO THE SUBJECT SECURITIES.
4. Representations and Warranties of HCR.
A. Power; Binding Agreement. HCR has full corporate power and
authority to enter into and perform all of HCR's obligations under
this Agreement. This Agreement has been duly and validly executed and
delivered by HCR and constitutes a valid and binding agreement of HCR,
enforceable against HCR in accordance with its terms, except that (i)
such enforcement may be subject to applicable bankruptcy, insolvency
or other similar laws, now or hereafter in effect, affecting
creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
B. No Conflicts. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority
is necessary for the execution of this Agreement by HCR and the
consummation by HCR of the transactions contemplated hereby and
neither the execution and delivery of this Agreement by HCR nor the
consummation by HCR of the transactions contemplated hereby nor
compliance by HCR with any of the provisions hereof shall conflict
<PAGE>
with or result in any breach of any organizational documents
applicable, to HCR result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give
rise to any third-party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which HCR is a party or by which HCR's
properties or assets may be bound or violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to HCR or any of HCR's properties or assets, except for any
such conflicts, breaches, defaults or violations as would not
materially impair HCR's performance of its obligations hereunder.
5. Covenants of the Holders. Each Holder, severally and not jointly,
hereby agrees and covenants that:
A. No Solicitation. Such Holder shall not, directly or
indirectly, solicit (including by way of furnishing information) or
respond to any inquiries or the making of any proposal by any person
or entity (other than HCR or any affiliate of HCR) with respect to
Manor Care that constitutes or could reasonably be expected to lead to
an Alternative Transaction. If any Holder receives any such inquiry or
proposal, then it shall promptly inform HCR of the terms and
conditions, if any, of such inquiry or proposal and the identity of
the person making it. Such Holder will immediately cease and cause to
be terminated any existing activities, discussions or negotiations
with any parties conducted heretofore with respect to any of the
foregoing.
B. Restriction on Transfer, Proxies and Noninterference. Such
Holder shall not, directly or indirectly: (i) except pursuant to the
terms of the Merger Agreement, offer for sale, sell, transfer (whether
by merger, operation of law or otherwise), tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the
offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of such Holder's
Subject Securities; provided, however, that such Holder may in
connection with its estate planning objectives, transfer or assign any
or all of its Subject Securities to (a) Stewart Bainum or his spouse
or widow, their lineal descendants or their spouses or widows or
widowers (so long as they remain spouses) (each a "Member of the
Bainum Family"), or the estate of the foregoing persons (but only
until such time as such shares of the Common Stock are distributed
therefrom), (b) any partnership, trust, corporation or other entity
(each, an "Entity"), but only if a Member or Members of the Bainum
Family or another Entity satisfying the requirements hereof are the
sole "Beneficial Owners" (as such term is defined under the HCR Rights
Plan (as defined in the Merger Agreement)) of the Common Stock held by
such Entity, other than any officer, trustee, director, or other
<PAGE>
managing person or managing partner or managing member of any such
Entity to the extent any such person is deemed to be the Beneficial
Owner of Common Stock held by such Entity, provided such person is not
the Beneficial Owner, other than through an Entity described in this
clause (b), of in excess of 1% of the total outstanding Common Stock;
(ii) except as contemplated hereby, grant any proxies or powers of
attorney, deposit any such Subject Securities into a voting trust or
enter into a voting agreement with respect to any of such Holder's
Subject Securities; or (iii) take any action that would make any
representation or warranty contained herein untrue or incorrect or
have the effect of preventing or disabling such Holder from performing
its obligations under this Agreement. The Holder's Manor Care stock
certificates shall be legended to reflect the above restrictions.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to the
contrary, the covenants and agreements set forth herein shall not prevent any
Holders serving on Manor Care's Board of Directors from taking any action,
subject to applicable provisions of the Merger Agreement, which such director
shall deem to be required by his fiduciary duties to Manor Care or its
stockholders while acting in such person's capacity as a director of Manor Care.
7. Assignment; Benefits. The rights (but not the obligations) of HCR
hereunder may be assigned, in whole or in part, to Merger Sub or any other
direct wholly-owned subsidiary of HCR, to the extent and for so long as it
remains a direct wholly-owned subsidiary of HCR. Other than as permitted in the
preceding sentence, this Agreement may not be assigned by any party hereto
without the prior written consent of the other party. This Agreement shall be
binding upon, and shall inure to the benefit of, the Holder, HCR and their
respective successors and permitted assigns.
8. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier or sent by
electronic transmission, with confirmation received, as specified below:
If to each Holder:
TO THE PERSONS SET FORTH ON THE SIGNATURE PAGES HERETO
<PAGE>
If to HCR:
One SeaGate
Toledo, OH 43604-2616
Telecopier No.: (419) 252-5559
Telephone No.: (419) 252-5500
Attention: R. Jeffrey Bixler
With a copy to:
Latham & Watkins
233 South Wacker Drive
Sears Tower, Suite 5800
Chicago, IL 60606
Telecopier No.: (312) 993-9767
Telephone No.: (312) 876-7700
Attention: Mark D. Gerstein
or to such other address or telecopy number as any party may have furnished to
the other parties in writing in accordance herewith.
9. Specific Performance. The parties hereto agree that irreparable
harm would occur in the event that any of the provisions of this Agreement were
not performed in accordance with its specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
10. Amendment. This Agreement may not be amended or modified, except
by an instrument in writing signed by or on behalf of each of the parties
hereto. This Agreement may not be waived by either party hereto, except by an
instrument in writing signed by or on behalf of the party granting such waiver.
11. Governing Law. The Laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law. Any suit, action or proceeding by a party hereto with respect to this
Agreement, or any judgment entered by any court in respect of any thereof, may
be brought in any state or federal court of competent jurisdiction in the State
of Delaware, and each party hereto hereby submits to the exclusive jurisdiction
of such courts for the purpose of any such suit, action, proceeding or judgment.
<PAGE>
By the execution and delivery of this Agreement, (i) HCR and Merger Sub each
appoints The Corporation Trust Company, at its office in Wilmington, Delaware,
as its agent upon which process may be served in any such suit, action or
proceeding and (ii) each Stockholder appoints CSC/The United States Corporation
Company at its office in Wilmington, Delaware, as its agent upon which process
may be served in any such suit, action or proceeding. Service of process upon
such agent, together with notice of such service given to a party hereto in the
manner provided in Section 8 hereof, shall be deemed in every respect effective
service of process upon it in any suit, action or proceeding. Nothing herein
shall in any way be deemed to limit the ability of a party hereto to serve any
such writs, process or summonses in any other manner permitted by applicable
Law. Each party hereto hereby irrevocably waives any objections which it may now
or hereafter have to the laying of the venue of any suit, action or proceeding
arising out of or relating to this Agreement brought in any state or federal
court of competent jurisdiction in the State of Delaware, and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in any inconvenient forum. No suit, action or
proceeding against a party hereto with respect to this Agreement may be brought
in any court, domestic or foreign, or before any similar domestic or foreign
authority other than in a court of competent jurisdiction in the State of
Delaware, and each party hereto hereby irrevocably waives any right which it may
otherwise have had to bring such an action in any other court, domestic or
foreign, or before any similar domestic or foreign authority.
12. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
13. Defined Terms. Terms used herein but not otherwise defined shall
have the meanings set forth in the Merger Agreement.
14. Termination. This Agreement shall terminate upon the earlier of
(i) the Effective Time the Merger and (ii) the date of termination of the Merger
Agreement, unless the termination of the Merger Agreement gives rise to the
obligation of Manor Care to pay a termination fee pursuant to Section 9.3 of the
Merger Agreement, in which case the Voting Agreement shall terminate on the date
that is the six month anniversary of the date of termination of the Merger
Agreement. The date and time at which this Agreement is terminated in accordance
with this Section 14 is referred to herein as the "Termination Date." Upon any
termination of this Agreement, this Agreement shall thereupon become void and of
no further force and effect, and there shall be no liability in respect of this
Agreement or of any transactions contemplated hereby or by the Merger Agreement
on the part of any party hereto or any of its directors, officers, partners,
stockholders, employees, agents, advisors, representatives or affiliates;
provided, however, that nothing herein shall relieve any party from any
liability for such party's willful breach of this Agreement; and provided
further that nothing herein shall limit, restrict, impair, amend or otherwise
modify the rights, remedies, obligations or liabilities of any person under any
<PAGE>
other contract or agreement, including, without limitation, the Merger
Agreement.
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
Health Care and Retirement Corporation
By: /s/ Paul A. Ormond
Its: President
Bainum Associates Limited Partnership 5,417,761
By: /s/ B. Houston McCeney
B. Houston McCeney
Its: Voting General Partner
MC Investment Limited Partnership 4,415,250
By /s/ B. Houston McCeney
B. Houston McCeney
Its: Voting General Partner
Mid Pines Associates Limited Partnership 1,779,628
By: /s/ Stewart Bainum, Jr.
Stewart Bainum, Jr.
Its: Managing General Partner
Realty Investment Company, Inc. 3,567,869
By: /s/ Stewart Bainum
Stewart Bainum
Its: President
The Stewart Bainum Declaration of Trust 3,717,542
By: /s/ Stewart Bainum
Stewart Bainum
Trustee
The Jane L. Bainum Declaration of Trust 798,711
By: /s/ Jane L. Bainum
Jane L. Bainum
Trustee
