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APPENDIX 1.3
Exhibit 2.2
______________ , 1998
Bergen Xxxxxxxx Corporation
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
RE: IRREVOCABLE PROXY FOR PHARMERICA SHARES
Gentlemen:
We refer to that certain Stock Purchase Agreement, dated as of November
8, 1998 (the "Stock Purchase Agreement"), by and among Bergen Xxxxxxxx
Corporation, a New Jersey corporation ("BBC"), Xxxxxxxxxxx Drug Co., Inc., a
Pennsylvania corporation ("Xxxxxxxxxxx"), Counsel Corporation, an Ontario
corporation (the "Canadian Seller"), and Stadt Holdings, Inc., a Delaware
corporation and an indirect subsidiary of the Canadian Seller (the "U.S. Seller"
and, collectively with the Canadian Seller, the "Sellers"). All capitalized
terms not otherwise defined herein shall have the meanings ascribed thereto in
the Stock Purchase Agreement.
This letter is being delivered pursuant to Section 6.15 of the Stock
Purchase Agreement to evidence the voting rights we have granted to BBC with
respect to the PharMerica Shares now owned and hereafter acquired by us, subject
to our right to dispose of our PharMerica Shares in accordance with Section 6.15
of the Stock Purchase Agreement. We reiterate our acknowledgment that as a
material inducement and condition to your willingness to enter into the Stock
Purchase Agreement, you have requested, and the Sellers have agreed (on behalf
of themselves and their subsidiaries) under Section 6.15 of the Stock Purchase
Agreement to grant to you, an irrevocable proxy to vote the PharMerica Shares in
any and all votes by the stockholders of PharMerica in a vote to approve or
disapprove a PharMerica Business Combination (a "PharMerica Business Combination
Vote"), subject to our right to dispose of our PharMerica Shares in accordance
with Section 6.15 of the Stock Purchase Agreement.
In fulfillment of our agreement as aforesaid, we have executed and
attached to this letter an irrevocable proxy (the "Proxy") appointing BBC as
proxy, with full power of substitution, to vote in a PharMerica Business
Combination Vote all of the PharMerica Shares owned by the undersigned as of the
record date for such vote, as and to the extent BBC shall determine in its sole
discretion. We further acknowledge that the Proxy is coupled with an interest in
the subject PharMerica Shares by reason of the rights granted to BBC therein
under the Stock Purchase Agreement.
The Proxy is irrevocable, and shall not be terminated, revoked, amended
or modified in any way except by a writing signed by BBC and the undersigned.
This letter agreement, together with the Proxy and the Stock Purchase Agreement,
contains the entire agreement of the parties with respect to the subject matter
hereof. The undersigned acknowledge and agree that monetary damages are an
inadequate remedy for breach of the Proxy. Therefore, the undersigned agree that
BBC has the right and shall be entitled to, in addition to any other rights it
may have, specific enforcement of the Proxy. Each of the undersigned hereby
further agree that it shall do all things, take all steps, including without
limitation, executing all further documents, instruments, powers and agreements
to further the intent and purposes of this letter agreement and to confer upon
BBC the practical benefits to be realized by it hereunder.
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COUNSEL CORPORATION
By:
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Name:
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Title:
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COUNSEL HEALTHCARE ASSETS, INC.
By:
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Name:
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Title:
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IRREVOCABLE PROXY
The undersigned hereby appoint Bergen Xxxxxxxx Corporation (and its
successors and assigns) ("BBC"), acting through a duly authorized officer, as
proxy, with full power of substitution, to vote all of the shares of the Common
Stock of PharMerica, Inc. par value $.01 per share (the "PharMerica Shares"),
owned by the undersigned on the applicable record date (by vote at a meeting of
the stockholders of PharMerica, Inc. ("PharMerica"), at any adjournments or
postponements thereof, by solicitation of proxies, by solicitation of consents
or otherwise), in all votes of the stockholders of PharMerica on the approval or
disapproval of (a) any merger, consolidation, share exchange, business
combination or similar transaction involving PharMerica (other than a
transaction in which the shareholders of PharMerica will, after such
transaction, continue to own at least two thirds of the shares of the successor
corporation), (b) any sale, lease or transfer of substantially all of the assets
of PharMerica, (c) any tender or exchange offer made generally to the
shareholders of PharMerica and (d) any other transaction which, if consummated,
would be required by the Securities and Exchange Commission to be reported in
response to Item 1 of the Current Report on Form 8-K.
The undersigned expressly acknowledge that BBC may vote the PharMerica
Shares in the sole discretion of BBC, without regard to any instructions,
written or otherwise, that may be given by the undersigned in respect of such
vote. The undersigned further acknowledge that the undersigned's attendance at
any such vote of the stockholders shall not affect the validity of this Proxy.
This Proxy is coupled with an interest in the PharMerica Shares that are the
subject of this Proxy by reason of the rights granted to BBC under that certain
stock purchase agreement, dated as of November 8, 1998, among BBC, Counsel
Corporation ("Counsel"), Xxxxxxxxxxx Drug Co., Inc. and another subsidiary of
Counsel (the "Stock Purchase Agreement"). The undersigned further agree that the
undersigned shall not take any action or step, or fail to take and action or
step, to revoke this Proxy or otherwise diminish or prevent the practical
realization of the rights granted to BBC hereunder, subject to the undersigned's
rights under Section 6.15 of Agreement to dispose of PharMerica Shares in
certain circumstances.
The undersigned have the full power and authority to execute and
deliver this Proxy, and when so executed, this Proxy shall remain valid and in
effect until 11:59 p.m., Eastern Standard Time on December 31, 2001 (the
"Overall Expiration Time"); provided, however, that this Proxy shall cease to be
effective with respect to PharMerica Shares disposed of by the undersigned prior
to the Overall Expiration Time to the extent that such disposition is consistent
with the terms of Section 6.15 of the Stock Purchase Agreement.
COUNSEL HEALTHCARE ASSETS, INC. COUNSEL CORPORATION
By: By:
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Name: Name:
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Title: Title:
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