1
EXHIBIT 2.4
VOTING TRUST
VOTING TRUST AGREEMENT, dated as of , 1998, by and among
Counsel Corporation, an Ontario corporation (the "Canadian Seller"), Counsel
Healthcare Assets, Inc., a Delaware corporation ("CHA", and together with the
Canadian Seller, the "Stockholders"), and Bergen Xxxxxxxx Corporation, a New
Jersey corporation, its successors in trust, as voting trustee (in such
capacity, the "Voting Trustee").
RECITALS
WHEREAS, the Stockholders are the legal and beneficial owners of the number
of shares, indicated on Schedule 1 hereto, of common stock, par value $.01 (the
"PharMerica Stock"), of PharMerica, Inc. (the "Corporation"), which shares
constitute on the day hereof, approximately 8% of the issued and outstanding
PharMerica Stock; and
WHEREAS, the Canadian Seller, Bergen Xxxxxxxx Corporation, Xxxxxxxxxxx Drug
Co., Inc., a Pennsylvania corporation, and another subsidiary of the Canadian
Seller have entered into a certain Stock Purchase Agreement, dated as of
November 8, 1998 (the "Stock Purchase Agreement"), pursuant to which the
Stockholders have agreed that the Voting Trustee shall be empowered to exercise
the Stockholders' rights to direct the vote of their PharMerica Stock upon the
circumstances described herein;
NOW, THEREFORE, the parties hereto herby agree that a voting trust with
respect to the shares of PharMerica Stock now owned (or received as a dividend
on such shares) by each of the Stockholders is hereby created and established,
subject to the terms and conditions of this Agreement (the "Voting Trust"), and
further agree as follows:
SECTION 1. Registration of Voting Trust Stock. Simultaneously with the
execution of this Agreement, the Stockholders shall deposit with the Voting
Trustee all of the shares of PharMerica Stock owned by each of them by delivery
to the Voting Trustee of certificates representing such shares of PharMerica
Stock, together with stock powers, duly endorsed in blank, transferring such
certificates to the Voting Trustee. The Voting Trustee is fully authorized to
take such action as is necessary to effect the transfer of such shares of
PharMerica Stock to, and in the name of, the Voting Trustee on the books of the
Corporation (and also to cause any further transfers of such shares to be made
which become necessary through any change of the entities holding the office of
Voting Trustee, as hereinafter provided). The Voting Trustee shall file
duplicates of this Agreement with the Secretary of the Corporation and the
registered office of the Corporation in the State of Delaware. The certificates
for the
2
PharMerica Stock transferred and delivered to the Voting Trustee pursuant to
this Agreement shall be surrendered by the Voting Trustee to the Corporation and
canceled, and new certificates therefor shall be issued to and held by the
Voting Trustee in the name of the Voting Trustee (in its capacity as such)
(such shares of PharMerica Stock and any other shares of PharMerica Stock that
may in the future be deposited in the voting Trust being referred to herein as
the "Voting Trust Stock"). Upon receipt by the Voting Trustee of the
certificates for such shares of PharMerica Stock and upon the transfer of such
shares of PharMerica Stock into the name of the Voting Trustee, the Voting
Trustee shall hold the Voting Trust Stock, as stockholder of record, subject to
the terms and conditions of this Agreement. The Voting Trustee shall request
the Corporation to state in the stock ledger of the Corporation that the shares
of PharMerica Stock transferred or issued to the Voting Trustee were
transferred or issued pursuant to this Agreement.
SECTION 2. Stock Certificates. On all certificates representing Voting
Trust Stock, in addition to any other legend that may be required, the following
legend shall be appended:
The shares of Common Stock evidenced by this stock certificate
are subject to certain restrictions, including restrictions on
voting and on transfer, contained in the Voting Trust Agreement,
dated as of _______________, 199_, among Counsel Corporation,
Counsel Healthcare Assets, Inc. and Bergen Xxxxxxxx Corporation,
as voting trustee, and are issued pursuant to such Voting Trust
Agreement. By accepting this stock certificate, the holder hereof
agrees to be bound by all of the provisions of such Voting Trust
Agreement, which is available for inspection by the holder hereof
daily at the registered office of the Corporation in the State of
Delaware during regular business hours.
SECTION 3. Issuance of Voting Trust Certificates. The Voting Trustee
shall issue to each of the Stockholders, in exchange for the Voting Trust Stock
delivered hereunder, a voting trust certificate substantially in the form
attached as Exhibit A hereto (a "Voting Trust Certificate"). Except as otherwise
provided herein, all options, rights of purchase and other powers and privileges
affecting the Voting Trust Stock represented by a Voting Trust Certificate shall
attach to such Voting Trust Certificate.
SECTION 4. Voting of the Voting Trust Stock.
(a) The Voting Trustee shall have the exclusive right to exercise, in
person or by its nominees or proxies or by written consent, all voting rights
and powers granted under the Delaware General Corporation Law (the "DGCL") in
respect of all Voting Trust Stock deposited hereunder, and to take part in,
or consent to, any corporate or stockholder action of any kind whatsoever
permissible under the DGCL (including, without limitation, calling such meetings
and taking such other actions as
-2-
3
may be permitted under the Corporation's Certificate of Incorporation and
By-laws).
(b) Except as provided in Section 4(d) below, the Voting Trustee shall
vote the Voting Trust Stock (or act by written consent) on all matters in
accordance with the written instructions of the holder of Voting Trust
Certificates relating to such Voting Trust Stock, or, if no such written
instructions are obtained, vote "abstain".
(c) Intentionally omitted.
(d) In the event that the shareholders of the Corporation are asked to
vote or grant consents with respect to a PharMerica Business Combination (as
defined in the Stock Purchase Agreement), the Voting Trustee shall vote the
Voting Trust Stock (or act by written consent) with respect to such vote in the
manner and to the extent that it shall determine in its sole discretion,
regardless of any instructions that may be given by the holders of the Voting
Trust Certificates to, or otherwise received by, the Voting Trustee.
(e) The holders of the Voting Trust Certificates agree that (i) in voting
the Voting Trust Stock, the Voting Trustee shall incur no liability in its
capacity as such except for its willful failure or a failure resulting from its
lack of exercise of reasonable diligence to comply with the terms of this
Agreement as trustee hereunder, and (ii) to the fullest extent permitted by
law, neither the Voting Trustee, nor any officer, director, employee or agent
of the Voting Trustee, shall be liable for the consequence of any vote cast, or
consent given by the Voting Trustee, or any other action taken or omitted to be
taken by the Voting Trustee, except for any such liability resulting from its
willful failure or a failure resulting from its lack of exercise of reasonable
diligence to comply with the terms of this Agreement as trustee hereunder.
SECTION 5. Transfers of Certificates.
(a) The holders of the Voting Trust Certificates shall not transfer the
Voting Trust Certificates other than (i) to any entity that is a direct or
indirect wholly owned subsidiary of the Canadian Seller, or (ii) with the
consent of the Voting Trustee, which consent shall not be unreasonably
withheld. If, prior to the Expiration Time (as hereinafter defined), either of
the holders of the Voting Trust Certificates notify the Voting Trustee that
such holder desires to offer, sell, pledge or transfer any shares of the Voting
Trust Stock of which it is the beneficial owner in a manner that is not
precluded by Section 6.15 of Stock Purchase Agreement and tenders to the Voting
Trustee for cancellation the Voting Trust Certificates associated with the
shares of Voting Trust Stock to be so transferred, the Voting Trustee shall
promptly cause such shares of Voting Trust Stock to be transferred into the
name of such holder and upon consummation of such transfer, such shares of
Voting Trust Stock shall cease to be governed by the terms of this Agreement.
(b) If any mutilated Voting Trust Certificate is surrendered to the Voting
-3-
4
Trustee, or the Voting Trustee receives evidence to its satisfaction that any
Voting Trust Certificate has been destroyed, lost or stolen, and upon proof of
ownership satisfactory to the Voting Trustee together with such security or
indemnity as may be requested, in the case of destroyed, lost or stolen Voting
Trust Certificates, by the Voting Trustee to save it harmless, the Voting
Trustee shall execute and deliver a new Voting Trust Certificate for the same
number of shares of Voting Trust Stock as the Voting Trust Certificate so
mutilated, destroyed, lost or stolen, with such notations, if any, as the
Voting Trustee shall determine.
(c) Prior to due presentment of a Voting Trust Certificate for transfer in
compliance with the requirements of Section 5(a), the Voting Trustee may treat
the registered holder of any Voting Trust Certificate as the owner thereof for
all purposes whatsoever, and the Voting Trustee shall not be affected by notice
to the contrary.
SECTION 6. Termination.
(a) The Voting Trust created hereby shall terminate on the earliest of (i)
11:59 p.m. Eastern Standard Time, December 31, 2001 (the "Expiration Time"),
(ii) the date on which the consummation of a PharMerica Business Combination
occurs, (iii) the delivery to the holders of the Voting Trust Certificates and
the Corporation of a written notice duly executed by the Voting Trustee
expressly terminating the Voting Trust, and (iv) the first date on which the
Voting Trustee shall no longer hold any Voting Trust Stock.
(b) Upon the termination of this Voting Trust, the Voting Trust
Certificates representing the Voting Trust Stock shall be deemed canceled and,
upon the surrender of such certificates to the Voting Trustee, the Voting
Trustee shall deliver the certificates representing the Voting Trust Stock
relating to such Voting Trust Certificates duly endorsed by the Voting Trustee
for transfer to the transferee of the relevant Voting Trust Certificate.
SECTION 7. Extension.
(a) The duration of this Agreement may be extended by an instrument in
writing, signed by the holders of the Voting Trust Certificates and the Voting
Trustee.
(b) If this Agreement shall be extended pursuant to Section 7(a), the
Voting Trustee shall file a copy of the instrument effecting such extension
with the Secretary of the Corporation and in the registered office of the
Corporation in the State of Delaware.
SECTION 8. Dividends. The Voting Trustee shall not be entitled to retain
any dividends or other distributions of cash or other property or securities
(other than PharMerica Stock), if any, with respect to the Voting Trust Stock
and such distributions (other than distributions of PharMerica Stock), if any,
shall be paid by the Voting
-4-
5
Trustee to the registered holders of the Voting Trust Certificates immediately
upon receipt by the Voting Trustee. Any distributions paid in PharMerica Stock
shall be deposited into the Voting Trust and a Voting Trust Certificate shall
be delivered to the beneficial owner of such PharMerica Stock evidencing such
deposit.
SECTION 9. Compensation of Voting Trustee. The Voting Trustee acknowledges
that it shall not be entitled to receive a fee from the holders of the Voting
Trust Certificates with respect to its services hereunder.
SECTION 10. Successor Voting Trustee. The Voting Trustee may resign at any
time by giving written notice 30 days prior to the date of such resignation to
the holders of the Voting Trust Certificates. The resigning Voting Trustee is
hereby authorized to appoint a successor Voting Trustee, which shall be a direct
or indirect wholly owned subsidiary of the resigning Voting Trustee with assets
of not less than $500,000,000. Upon the acceptance in writing by a successor
Voting Trustee of any appointment as Voting Trustee hereunder and the agreement
in writing of such successor Voting Trustee to be bound by the obligations
contained in this Agreement, (i) the retiring Voting Trustee shall give written
notice to (a) the Corporation of its retirement, and direct that all notices due
to it by virtue of its position as Voting Trustee should be sent to the
successor Voting Trustee and (b) to the holders of the Voting Trust Certificates
providing the name, address and contact person at the successor Voting Trustee,
and (ii) such successor Voting Trustee shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Voting Trustee and
such successor Voting Trustee shall deliver to the Corporation written notice of
its acceptance of the position of Voting Trustee, and (iii) upon (but only upon)
such acceptance, the retiring Voting Trustee shall be discharged from further
responsibilities under this Agreement provided that the retiring Voting Trustee
shall not be relieved of any liability incurred hereunder prior to such
acceptance by its successor.
SECTION 11. Concerning the Trustee
(a) The Voting Trustee shall have all requisite power, authority and
discretion as shall be necessary or appropriate to enable it to take all such
actions as it is required to take pursuant to this Agreement. The Voting Trustee
shall have no liability hereunder except for its willful failure or a failure
resulting from its lack of exercise of reasonable diligence to comply with the
terms of this Agreement as trustee hereunder.
(b) The Voting Trustee shall be protected and shall incur no liability for,
or in respect of, any action taken or omitted to be taken or anything suffered
by it in reliance upon any notice, discretion, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be genuine and
to have been presented or signed by the proper parties.
(c) The Voting Trustee shall be obligated to perform such duties and
-5-
6
only such duties as are herein specifically set forth, and no implied duties or
obligations shall be read into this Agreement except to the extent the same
shall inure to the benefit of the Voting Trustee. The Voting Trustee shall not
be under any obligation to take any action hereunder for which it may incur any
expense or liability unless (i) it is otherwise expressly obligated to take
such action hereunder at its own expense or liability or (ii) in its reasonable
opinion, it believes it should but will not be reimbursed in accordance with
this Agreement.
SECTION 12. Indemnification. [Intentionally omitted.]
SECTION 13. Other Obligations of the Voting Trustee.
(a) The Voting Trustee shall file a copy of this Agreement in the
registered office of the Corporation in the State of Delaware. The Voting
Trustee shall request that such office keep such copy open to the inspection of
any stockholder of the Corporation, or any holder of a Voting Trust
Certificate, daily during business hours.
(b) The Voting Trustee shall give written notice to the holders of the
Voting Trust Certificates if a meeting of the Corporation's stockholders is
called at which the Voting Trustee shall be asked to vote, or if in lieu of
such meeting the Voting Trustee shall be asked to act by written consent, on
any corporate action requiring approval of the Corporation's stockholders.
SECTION 14. No Legal Title to Voting Trust Stock in Holders of Voting
Trust Certificates. The holders of Voting Trust Certificates shall not have
legal title to any part of the Voting Trust Stock and, except as contemplated by
Section 5, shall not be entitled to transfer or convey any interest in
(including, without limitation, any encumbrance on) the Voting Trust Stock. No
creditor of any holder of a Voting Trust Certificate shall be able to obtain
legal title to or exercise legal or equitable remedies with respect to the
Voting Trust Stock. Except as expressly provided for herein or in the Stock
Purchase Agreement, no transfer, by operation of law or otherwise, of any right,
title and interest of any holder of a Voting Trust Certificate in and to its
undivided beneficial interest in the Voting Trust Stock or hereunder shall
operate to terminate this Agreement or the Voting Trust or entitle any successor
of any holder of a Voting Trust Certificate to an accounting or to the transfer
to it of any legal title to any part of the Voting Trust Stock.
SECTION 15. Beneficiaries. Nothing in this Agreement, whether express or
implied, shall be construed to give any person other than the Voting Trustee or
the holders of the Voting Trust Certificates any right in the Voting Trust Stock
or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 16. Assignment. Except as expressly provided in Section 5, no
assignment or transfer of any interest, right or obligation of any holder of a
Voting Trust Certificate under this Agreement shall be allowed and any such
assignment or
-6-
7
transfer in contravention hereof shall be void and of no effect.
SECTION 17. Amendments. This Agreement may not be amended, supplemented or
otherwise modified except in a writing signed by the Voting Trustee and all of
the holders of the Voting Trust Certificates. If this Agreement shall be
amended, the Voting Trustee shall file a copy of the instrument effecting such
amendment in the registered office of the Corporation in the State of Delaware.
SECTION 18. Notices. All notices, consents, approvals and other
communications given or made pursuant hereto shall be in writing and shall be
(a) delivered personally against receipt thereof, (b) sent by overnight
courier, (c) transmitted by telecopier or (d) sent by registered or certified
mail (postage prepaid, return receipt requested), in each case to the parties
at the following addresses (or at such other address for a Party as shall be
specified by like notice):
(a) if to any holder of a Voting Trust Certificate, at the address for
such holder specified in the record of beneficial owners maintained by the
Voting Trustee.
(b) if to the Voting Trustee, to the following address:
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Milan A. Sawdei, Esq.
Chief Legal Officer and Secretary
All such notices, consents, approvals and other communications shall be deemed
to have been given on (x) the date of receipt if delivered personally or by
overnight courier, (y) the date of transmission with confirmation answerback if
transmitted by telecopier or (z) the third business day following posting if
sent by mail.
SECTION 19. Interpretation. The terms defined in this Agreement include
the plural as well as the singular. When a reference is made in this Agreement
to a Section, Schedule or Exhibit, such reference shall be to a Section,
Schedule or Exhibit of this Agreement unless otherwise indicated. The headings
contained herein are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
SECTION 20. Severability. If any provision of this Agreement shall be held
to be invalid, illegal or unenforceable, in whole or in part, under the laws of
the State of Delaware, such invalidity, illegality or enforceability shall not
in any way whatsoever affect the validity of the other provisions of this
Agreement and such other provisions shall remain in full force and effect.
-7-
8
SECTION 21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. One or more counterparts
of this document may be delivered via telecopier, with the intention that they
shall have the same effect as an original, executed counterpart hereof.
SECTION 22. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF
THE LAWS THAT MIGHT BE APPLIED UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
EACH OF THE PARTIES HERETO AGREES THAT ANY LEGAL ACTION BETWEEN OR AMONG THE
PARTIES RELATING TO THE ENTRY INTO OR PERFORMANCE OF THIS AGREEMENT, OR THE
INTERPRETATION OR ENFORCEMENT OF THE TERMS HEREOF, SHALL BE BROUGHT ONLY IN A
STATE COURT LOCATED IN NEW CASTLE COUNTY, DELAWARE, HAVING JURISDICTION OF THE
SUBJECT MATTER THEREOF, AND EACH PARTY IRREVOCABLY CONSENTS TO PERSONAL
JURISDICTION IN ANY SUCH STATE COURT, WAIVES ANY RIGHT TO OBJECT TO SUCH VENUE
OR TO ASSERT THE DEFENSE OF FORUM NON-CONVENIENS, AND AGREES THAT SERVICE OF
PROCESS MAY BE MADE BY CERTIFIED OR REGISTERED MAIL ADDRESSED TO SUCH PARTY AT
ITS ADDRESS SET FORTH IN, OR DETERMINED IN ACCORDANCE WITH, SECTION 18 HEREOF.
SECTION 23. Representations. Each of the parties hereto represents that
this Agreement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
SECTION 24. Definitions. When used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" has the meaning specified in Section 10.
"PharMerica Stock" has the meaning specified in the Recitals.
"Corporation" has the meaning specified in the Recitals.
"DGCL" has the meaning specified in Section 4.
"Stockholder" means Counsel and CHA.
"Voting Trust" has the meaning specified in the Recitals.
"Voting Trust Certificate" has the meaning specified in Section 3.
-8-
9
"Voting Trustee" has the meaning specified in the introductory paragraph
hereof.
"Voting Trust Stock" has the meaning specified in Section 1.
-9-
10
IN WITNESS WHEREOF, the Voting Trustee and each of the Stockholders have
duly executed this Voting Trust Agreement as of the day and the year first
above written.
COUNSEL CORPORATION,
Stockholder
By:
Name:
Title:
COUNSEL HEALTHCARE ASSETS, INC.
Stockholder
By:
Name:
Title:
BERGEN XXXXXXXX CORPORATION
Voting Trustee
By:
Name:
Title:
-10-
11
SCHEDULE I
STOCKHOLDER NO. OF SHARES CERTIF. NO.
Counsel
CHA
12
EXHIBIT A
VOTING TRUST CERTIFICATE
IN RESPECT OF
COMMON STOCK OF PHARMERICA, INC.
No.
THIS IS TO CERTIFY THAT ___________________________________ or its
registered assigns on or after January 1, 2202, or upon the earlier termination
of the Voting Trust Agreement hereinafter referred to (the "Agreement"), upon
surrender of this Certificate, will be entitled to receive a certificate or
certificates for ______ shares of Common Stock, par value $.01 per share (the
"PharMerica Stock") of PharMerica Inc. (the "Corporation") (or, if prior to the
termination of the Agreement, the Corporation shall change the outstanding
shares of its PharMerica Stock into the same or a different number of shares of
stock or of the same or any other class or classes, a number of shares of such
class or classes of stock equivalent to such number which would have been issued
for the aforesaid number and classes of shares of PharMerica Stock); and until
such time is entitled to receive payments of any dividends or distributions
(other than such as shall be in the form of shares of the capital stock of the
Corporation having present or contingent voting power, which shall continue to
be held by the undersigned Trustee or any successors thereto (the "Trustee"))
received by the Trustee in respect of the aforesaid number and classes of shares
of PharMerica Stock.
Until the termination of the Agreement and the delivery of such stock
certificates, the Trustee shall have the full, exclusive and unqualified right
and power to vote and to execute consents and dissents with respect to all
shares of stock of the Corporation having voting power held by the Trustee, at
all meetings of stockholders of the Corporation (or written actions in lieu
thereof), for any purpose, whether annual or special, and generally to exercise
all the powers of an absolute owner thereof, subject only to the limitations and
restrictions which are set forth in the Agreement, including, without
limitation, Section 4 of the Agreement; it being expressly stipulated that,
except as specifically set forth in the Agreement, no voting right passes to the
holder hereof by or under this Certificate or by or under any agreement,
expressed or implied.
This Certificate is issued pursuant and is subject to all of the terms and
conditions of the Voting Trust Agreement, dated as of ________, __ 1998, by and
among Counsel Corporation, Counsel Healthcare Assets, Inc. and Bergen Xxxxxxxx
Corporation, as Trustee, the terms of which the holder hereof agrees and
consents to. A copy of the Agreement is on file in the registered office of the
Corporation in Delaware.
-12-
13
This Certificate and the rights and interests represented hereby are
transferable only on the books of the Trustee upon surrender hereof at the
principal business office of the Trustee, properly endorsed, subject to such
rules and requirements concerning transfers as the Trustee may from time to time
adopt, by the registered holder hereof in person or by attorney duly authorized.
IN WITNESS WHEREOF, the Trustee has executed this Certificate this day
of , 1998.
BERGEN XXXXXXXX CORPORATION,
Voting Trustee
By:
Name:
Title:
-13-