VOTING/SUPPORT AGREEMENT
AGREEMENT, dated as of October 27, 1997 (this "Agreement"),
among McKesson Corporation, a Delaware corporation ("McKesson"),
Patriot Acquisition Corp., a Delaware corporation ("Merger Sub"), and
R. Xxxxx Xxxx (the "Stockholder").
WHEREAS, the Board of Directors of McKesson and the Board of
Directors of AmeriSource (capitalized terms used but not defined
herein having the respective meanings given to them in the Merger
Agreement) have approved an Agreement and Plan of Merger dated as of
even date herewith (the "Merger Agreement") providing for the merger
of a wholly owned subsidiary of McKesson with and into AmeriSource;
WHEREAS, the Stockholder is the record and beneficial owner of
shares of AmeriSource Class A Stock, AmeriSource Class B Stock and/or
AmeriSource Class C Stock in the amounts and of the class set forth
opposite the Stockholder's name on Annex A hereto (the "Shares");
WHEREAS, as a condition to McKesson's entering into the Merger
Agreement, McKesson has required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, to induce McKesson to enter into the Merger
Agreement and in consideration of the premises herein contained, the
parties agree as follows:
1. Grant of Irrevocable Proxy. (a) Until this Agreement is
terminated, the Stockholder hereby irrevocably appoints Merger Sub,
its officers, agents and nominees, with full power of substitution, as
proxy for and attorney in fact of the Stockholder to act with respect
to and vote the Shares owned by the Stockholder for and in the name,
place and stead of the Stockholder at any annual, special or other
meeting of the holders of shares of AmeriSource Common Stock and at
any adjournment or postponement thereof or pursuant to any written
consent in lieu of a meeting, to the fullest extent that the Shares
are entitled to be voted on any matter which may come before such
meeting or which may be the subject of such written consent, (i) in
favor of the Merger, the Merger Agreement and the transactions
contemplated thereby (but not any Material Adverse Amendments (as
defined below) to the Merger Agreement), (ii) against any Competing
Transaction, (iii) against any action or agreement the purpose or
effect of which would be to impede, interfere with or attempt to
discourage the Merger, and (iv) against any action the taking of which
would constitute a breach by AmeriSource of any of its
representations, warranties, covenants or agreements contained in the
Merger Agreement or in the AmeriSource Stock Option Agreement;
provided that such proxy may not be used to frustrate AmeriSource's
ability to terminate the Merger Agreement in accordance with the
provisions of Section 7.1(c) of the Merger Agreement. In all other
matters, the Shares shall be voted by and in the manner determined by
the Stockholder upon written notice to Merger Sub. The Stockholder
hereby represents that he has not heretofore granted any irrevocable
proxy with respect to his Shares and hereby revokes any and all
proxies which may heretofore have been granted with respect to the
Shares. As used herein, a "Material Adverse Amendment" is an amendment
that (i) materially and adversely affects the Stockholder and (ii) is
approved by AmeriSource's Board of Directors notwithstanding the fact
that in such vote the Stockholder voted against such amendment.
(b) The Stockholder understands and acknowledges that McKesson is
entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement. The Stockholder hereby
affirms that the irrevocable proxy set forth in this Section 1 is
given in connection with and as an inducement for the execution by
McKesson of the Merger Agreement and to secure the performance of the
duties of the Stockholder under this Agreement. The Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest
and may not be revoked. The Stockholder hereby ratifies and confirms
all that such proxy may lawfully do or cause to be done by virtue
hereof. This proxy is executed and intended to be irrevocable in
accordance with the provisions of Section 212 of the DGCL.
2. Agreement Not to Transfer. The Stockholder agrees that he will
not at any time during the term of this Agreement sell, transfer,
assign or otherwise dispose of ("Transfer") or pledge or otherwise
encumber, or enter into any contract, option or other arrangement with
respect to the Transfer, pledge or encumbrance of, any of the Shares,
or grant or purport to grant to any person any proxy or voting right
or any right to acquire any of the Shares, or enter into any voting
agreement with any person with respect to any of the Shares, or
deposit any of the Shares into a voting trust, provided that the
foregoing shall not prohibit the Stockholder from incurring a margin
loan from a bank or brokerage firm. The foregoing is in addition to
the Stockholder's obligations under Section 3(c).
3. Additional Covenants of the Stockholder. The Stockholder
hereby covenants and agrees with McKesson and Merger Sub that, until
this Agreement terminates:
(a) The Stockholder will not at any time, directly or indirectly,
solicit, initiate, encourage or facilitate, or furnish or disclose
non-public information in furtherance of, any inquiries or the making
of any proposal with respect to any Competing Transaction, and will
immediately cease all existing activities, discussions and
negotiations with any parties conducted heretofore with respect to any
proposal for a Competing Transaction.
(b) The Stockholder shall take all actions necessary to call, or
cause AmeriSource to call, the AmeriSource Stockholders Meeting, in
accordance with the provisions of the Merger Agreement, and shall use
his best efforts to cause such meeting to be held and completed on the
date scheduled for such meeting.
(c) The Stockholder will not, during the 30 days prior to the
Effective Time, sell, transfer or otherwise dispose of or reduce his
risk (as contemplated by the SEC Accounting Series Release No. 135)
with respect to the Shares or shares of Parent Common Stock that he
may hold. Provided that McKesson is not in breach of the provisions of
Section 5(b), the Stockholder will not sell, transfer or otherwise
dispose of or reduce his risk (as contemplated by SEC Accounting
Series Release No. 135) with respect to any Parent Common Stock
received by him in the Merger or any other shares of Parent Common
Stock until after such time as combined financial results (including
combined sales and net income) covering at least 30 days of combined
operations of AmeriSource and Parent have been published by Parent, in
the form of a quarterly earnings report, an effective registration
statement filed with the Commission, a report to the Commission on
Form 10-K, 10Q or 8-K, or any other public filing or announcement
which includes such combined results of operations.
(d) The Stockholder will deliver to McKesson at McKesson's
request (i) a written representation confirming, as of immediately
prior to the Effective Time, the accuracy of the representations and
warranties contained in Section 4, and (ii) such additional written
representations as may be reasonably requested by Dechert, Price &
Xxxxxx or Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx.
(e) The Stockholder will not take any action which would
jeopardize qualification of the Merger as a reorganization within the
meaning of Section 368(a) of the Code.
(f) The Stockholder will execute the AmeriSource Affiliate Letter
promptly upon request therefor, which letter shall be in the form
attached to the Merger Agreement as Exhibit A-1.
4. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to McKesson and Merger Sub
that:
(a) (i) The Shares listed on Annex A opposite the Stockholder's
name are the only shares of AmeriSource Common Stock owned of record
or beneficially by the Stockholder or in which the Stockholder has any
interest; (ii) such Shares are now and at all times during the term of
this Agreement will be owned by the Stockholder, free and clear of all
liens, claims, charges and encumbrances of any kind whatsoever except
for liens, claims or charges arising from margin loans from a bank or
brokerage firm and except as contemplated by this Agreement, and none
of such Shares is subject to any voting trust or other agreement or
arrangement (except as created by this Agreement) with respect to the
voting of such Shares; and (iii) the Stockholder does not presently
own any options to purchase or rights to subscribe for or otherwise
acquire any other shares of AmeriSource Common Stock except as set
forth in Annex A.
(b) The Stockholder has full right, power and authority to
execute and deliver this Agreement and to perform all of his
obligations hereunder.
(c) This Agreement has been duly and validly executed and
delivered by the Stockholder and represents a valid and legally
binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms.
(d) The execution, delivery and performance of this Agreement by
the Stockholder will not constitute a violation of, conflict with or
result in a default under (i) any contract, understanding or
arrangement to which the Stockholder is a party or by which the
Stockholder is bound or require the consent of any other person or any
party pursuant thereto, (ii) any judgment, decree or order applicable
to the Stockholder, or (iii) any Applicable Law.
5. Representations, Warranties and Covenants of McKesson and
Merger Sub. (a) McKesson and Merger Sub hereby represent and warrant
to the Stockholder that (i) McKesson and Merger Sub each have full
corporate right, power and authority to execute and deliver this
Agreement and to perform its obligations hereunder; (ii) such
execution, delivery and performance have been duly authorized by all
requisite corporate action by McKesson and Merger Sub, and no other
corporate proceedings are necessary therefor; (iii) this Agreement has
been duly and validly executed and delivered by McKesson and Merger
Sub and represents a valid and legally binding obligation of McKesson
and Merger Sub, enforceable against McKesson and Merger Sub in
accordance with its terms; and (iv) the execution, delivery and
performance of this Agreement by McKesson and Merger Sub will not
constitute a violation of, conflict with or result in a default under
(A) any contract, understanding or arrangement to which either
McKesson or Merger Sub is a party or by which either is bound or
require the consent of any other person or any party pursuant thereto,
(B) any judgment, decree or order applicable to McKesson or Merger
Sub, or (C) any Applicable Law.
(b) McKesson hereby covenants that, if the Effective Time is less
than 30 days prior to the end of McKesson's fiscal quarter or occurs
during the first 30 days of McKesson's fiscal quarter, McKesson shall
use reasonable efforts to prepare and publicly release, as soon as
practicable following the end of the first month ending at least 30
days after the Effective Time, a report filed with the Commission on
Form 8-K or any other public filing, statement or announcement which
includes the combined financial results (including combined sales and
net income) of McKesson and AmeriSource for a period of at least 30
days of combined operations of McKesson and AmeriSource following the
Effective Time.
6. Termination. (a) This Agreement, other than the obligations
set forth in Sections 3(c), 3(e), 5(b) and 6, shall terminate at the
Effective Time.
(b) This Agreement shall terminate (i) upon the termination of
the Merger Agreement pursuant to its terms or (ii) the occurrence of a
Material Adverse Amendment.
7. Severability. Any term, provision, covenant or restriction
contained in this Agreement held by a court or other Governmental
Authority of competent jurisdiction to be invalid, void or
unenforceable shall be ineffective to the extent of such invalidity,
voidness or unenforceability, but neither the remaining terms,
provisions, covenants or restrictions contained in this Agreement nor
the validity or enforceability thereof in any other jurisdiction shall
be affected or impaired thereby. Any term, provision, covenant or
restriction contained in this Agreement that is so found to be so
broad as to be unenforceable shall be interpreted to be as broad as is
enforceable.
8. Expenses. Each of the parties hereto shall pay all costs and
expenses incurred by him or on his behalf in connection with the
transactions contemplated hereunder, including fees and expenses of
his own financial consultants, investment bankers, accountants and
counsel, except as otherwise provided herein.
9. Entire Agreement. This Agreement (including the documents and
the instruments referred to therein) constitutes the entire agreement
between the parties and supersedes all prior agreements and
understandings, agreements or representations by or between the
parties, written and oral, with respect to the subject matter hereof
and thereof.
10. Successors; No Third Party Beneficiaries. The terms and
conditions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and
assigns. Nothing in this Agreement, expressed or implied, is intended
to confer upon any party, other than the parties hereto and their
respective successors and assigns, any rights, remedies, obligations,
or liabilities under or by reason of this Agreement, except as
expressly provided herein.
11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or dispatched by a nationally
recognized overnight courier service to the parties at the following
addresses (or at such other address for a party as shall be specified
by like notice):
(i) if to McKesson or Merger Sub, to
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn.: Xxxx X. Xxxxxxxx, Esq.
Telecopy No.: 000-000-0000
with copies to
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxx, P.C.
Telecopy No.: 000-000-0000
(ii) if to the Stockholder,
to the address set forth opposite his
name on Annex A.
with a copy to
Drinker Xxxxxx & Xxxxx
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxxx, Esq.
Telecopy No.: 000-000-0000
12. Counterparts. This Agreement may be executed in counterparts,
and each such counterpart shall be deemed to be an original
instrument, but both such counterparts together shall constitute but
one agreement.
13. Specific Performance. The parties hereto agree that if for
any reason McKesson or the Stockholder shall have failed to perform
their obligations under this Agreement, then the party hereto seeking
to enforce this Agreement against such non-performing party shall be
entitled to specific performance and injunctive and other equitable
relief, and the parties hereto further agree to waive any requirement
for the securing or posting of any bond in connection with the
obtaining of any such injunctive or other equitable relief. This
provision is without prejudice to any other rights that any party
hereto may have against any other party hereto for any failure to
perform its obligations under this Agreement.
14. Governing Law. This Agreement shall be governed by the laws
of the State of Delaware, without giving effect to the conflict of
laws principles thereof. Each party hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of
the courts of the State of Delaware and of the United States of
America located in the State of Delaware, for any Action (and agrees
not to commence any Action except in any such court), and further
agrees that service of process, summons, notice or document by U.S.
registered mail to its respective address set forth in Section 11
shall be effective service of process for any Action brought against
him in any such court. Each party hereby irrevocably and
unconditionally waives any objection to the laying of venue of any
Action in the courts of the State of Delaware or of the United States
of America located in the State of Delaware, and hereby further
irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any Action brought in any such court has
been brought in an inconvenient forum.
15. Waiver and Amendment. Any provision of this Agreement may be
waived at any time by the party that is entitled to the benefits of
such provision. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written
agreement executed by the parties hereto.
16. Duties. McKesson and Merger Sub acknowledge and agree that
the Stockholder has entered into this Agreement in his capacity as a
stockholder of AmeriSource and that this Agreement shall in no way
restrict the Stockholder in his capacity as an officer and a director
of AmeriSource and his performance of his duties to AmeriSource and
its stockholders.
17. Additional Shares. Notwithstanding the provisions of Section
15, in the event that the Stockholder acquires any additional shares
of AmeriSource Common Stock, such shares shall, without further action
of the parties, be subject to the provisions of this Agreement, and
Annex A will be deemed amended accordingly. If the Stockholder
acquires additional shares of AmeriSource Common Stock, he shall
promptly notify McKesson in writing of such acquisition.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the date first above written.
McKESSON CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
PATRIOT ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President
STOCKHOLDER:
/s/ R. Xxxxx Xxxx
-----------------
R. Xxxxx Xxxx
ANNEX A
Securities (in number of shares)
Record and --------------------------------
Beneficial Owner Class A Class B Class C
---------------- ------- ------- -------
R. Xxxxx Xxxx 191,150 0 0
Options to acquire the
following number of shares
Record and --------------------------
Beneficial Owner Class A Class B Class C
---------------- ------- ------- -------
R. Xxxxx Xxxx 110,000 0 0
ANNEX B
FORM OF AMERISOURCE AFFILIATE LETTER
McKesson Corporation
Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
I have been advised that as of the date of this letter I may be
deemed to be an "affiliate" of AmeriSource Health Corporation, a
Delaware corporation ("AmeriSource"), as the term "affiliate" is (i)
defined for purposes of paragraphs (c) and (d) of Rule 145 of the
rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") under the Securities Act of
1933, as amended (the "Act"), or (ii) used in and for purposes of
Accounting Series, Releases 130 and 135, as amended, of the
Commission. Pursuant to the terms of the Agreement and Plan of Merger
dated as of September 22, 1997 (the "Merger Agreement"), among
McKesson Corporation, a Delaware corporation ("McKesson"), Patriot
Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of McKesson ("Merger Sub"), and AmeriSource, Merger Sub
will be merged with and into AmeriSource (the "Merger").
As a result of the Merger, I may receive shares of common stock,
par value $.01 per share, of McKesson (the "McKesson Securities") in
exchange for shares owned by me of common stock, par value $.01 per
share, of AmeriSource (or upon the exercise of options for such
shares).
I hereby represent, warrant and covenant to McKesson that in the
event I receive any McKesson Securities as a result of the Merger:
A. I shall not make any sale, transfer or other disposition of
the McKesson Securities in violation of the Act or the Rules and
Regulations.
B. I have carefully read this letter and the Merger Agreement and
discussed the requirements of such documents and other applicable
limitations upon my ability to sell, transfer or otherwise dispose of
the McKesson Securities, to the extent I felt necessary, with my
counsel or counsel for AmeriSource.
C. I have been advised that the issuance of McKesson Securities
to me pursuant to the Merger has been registered with the Commission
under the Act on a Registration Statement on Form S-4. However, I have
also been advised that, since at the time the Merger was submitted for
a vote of the stockholders of AmeriSource, (i) I may be deemed to have
been an affiliate of AmeriSource and (ii) the distribution by me of
the McKesson Securities has not been registered under the Act, I may
not sell, transfer or otherwise dispose of the McKesson Securities
issued to me in the Merger unless (i) such sale, transfer or other
disposition has been registered under the Act, (ii) such sale,
transfer or other disposition is made in conformity with Rule 145 (as
such rule may be hereafter from time to time amended) promulgated by
the Commission under the Act, or (iii) in the opinion of counsel
reasonably acceptable to McKesson, or a "no action" letter obtained by
me from the staff of the Commission, such sale, transfer or other
disposition is otherwise exempt from registration under the Act.
D. I understand that McKesson is under no obligation to register
the sale, transfer or other disposition of the McKesson Securities by
me or on my behalf under the Act or to take any other action necessary
in order to make compliance with an exemption from such registration
available.
E. I also understand that stop transfer instructions will be
given to McKesson's transfer agents with respect to the McKesson
Securities and that there will be placed on the certificates for the
McKesson Securities issued to me, or any substitutions therefor, a
legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES
ACT OF 1933 APPLIES, AND MAY ONLY BE SOLD OR OTHERWISE
TRANSFERRED IN COMPLIANCE WITH THE REQUIREMENTS OF RULE 145 OR
PURSUANT TO A REGISTRATION STATEMENT UNDER THAT ACT OR AN
EXEMPTION FROM SUCH REGISTRATION."
F. I also understand that unless the transfer by me of my
McKesson Securities has been registered under the Act or is a sale
made in conformity with the provisions of Rule 145, McKesson reserves
the right to put the following legend on the certificates issued to my
transferee:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE ACQUIRED
FROM A PERSON WHO RECEIVED SUCH SHARES IN A TRANSACTION TO WHICH
RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933 APPLIES.
THE SHARES HAVE BEEN ACQUIRED BY THE HOLDER NOT WITH A VIEW TO,
OR FOR RESALE IN CONNECTION WITH, ANY DISTRIBUTION THEREOF WITHIN
THE MEANING OF THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT OF 1933."
It is understood and agreed that the legends set forth in
paragraphs E and F above shall be removed by delivery of substitute
certificates without such legend if such legend is not required for
purposes of the Act or this Agreement. It is understood and agreed
that such legends and the stop orders referred to above will be
removed if (i) evidence or representations satisfactory to McKesson
that the McKesson Securities represented by such certificates are
being or have been sold in a transaction made in conformity with the
provisions of Rule 145(d) (as such rule may be hereafter from time to
time amended) or (ii) McKesson has received either an opinion of
counsel, which opinion and counsel shall be reasonably satisfactory to
McKesson, or a "no action" letter obtained by me from the staff of the
Commission, to the effect that the restrictions imposed by Rule 145
under the Act no longer apply to me.
I further represent to and covenant with McKesson that I will
not, during the 30 days prior to the Effective Time (as defined in the
Merger Agreement), sell, transfer or otherwise dispose of or reduce my
risk (as contemplated by the SEC Accounting Series Release No. 135)
with respect to AmeriSource shares or shares of the capital stock of
McKesson that I may hold and, furthermore, provided that McKesson is
not in breach of Section 5(b) of the Voting/Support Agreement between
McKesson and me dated as of September 22, 1997, I will not sell,
transfer or otherwise dispose of or reduce my risk (as contemplated by
SEC Accounting Series Release No. 135) with respect to any McKesson
Securities received by me in the Merger or any other shares of the
capital stock of McKesson until after such time as combined financial
results (including combined sales and net income) covering at least 30
days of combined operations of AmeriSource and McKesson have been
published by McKesson, in the form of a quarterly earnings report, an
effective registration statement filed with the Commission, a report
to the Commission on Form 10-K, 10-Q or 8-K, or any other public
filing or announcement which includes such combined results of
operations. If the Effective Time is less than 30 days prior to the
end of McKesson's fiscal quarter, McKesson shall use reasonable
efforts to prepare and publicly release such combined financial
results as soon as practicable following the end of the first month
ending at least 30 days after the Effective Time and shall notify the
"affiliates" of the publication of such results.
Execution of this letter should not be considered an admission on
my part that I am an "affiliate" of AmeriSource as described in the
first paragraph of this letter, or as a waiver of any rights I may
have to object to any claim that I am such an affiliate on or after
the date of this letter.
Very truly yours,
---------------------------------
Name:
Accepted this ____ day of
_______________ , 199_ by
McKESSON CORPORATION
By:______________________________
Name:________________________
Title:_______________________
