Exhibit 2.03
Support/Voting Agreement
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December 2, 2000
Cardinal Health, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Re: Support/Voting Agreement
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Dear Sirs:
The undersigned understands that Cardinal Health, Inc. ("Cardinal"),
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Brick Merger Corp., a wholly owned subsidiary of Cardinal ("Subcorp"), and
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Bindley Western Industries, Inc. ("BWI") are entering into an Agreement and Plan
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of Merger, dated the date hereof (the "Agreement"), providing for, among other
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things, a merger between Subcorp and BWI (the "Merger") in which all of the
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outstanding shares of capital stock of BWI will be exchanged for common shares,
without par value, of Cardinal.
The undersigned is a shareholder of BWI (the "Shareholder") and is
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entering into this letter agreement to induce you to enter into the Agreement
and to consummate the transactions contemplated thereby. Capitalized terms not
defined in this letter agreement shall have the meaning assigned to them in the
Agreement.
The Shareholder confirms its agreement with you as follows:
1. The Shareholder represents, warrants and agrees that Schedule I
annexed hereto sets forth all of the shares of the capital stock of BWI of which
the Shareholder or any of its controlled affiliates (its "Controlled
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Affiliates"; "controlled" and "affiliates" as defined under the Securities
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Exchange Act of 1934, as amended) is the record or beneficial owner
(collectively, the "Shares") and that the Shareholder and its Controlled
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Affiliates are on the date hereof the lawful owners of the number of Shares set
forth in Schedule I, free and clear of all liens, charges, encumbrances, voting
agreements and commitments of every kind, except as disclosed in Schedule I.
Except for the Shares set forth in Schedule I, neither the Shareholder nor any
of its Controlled Affiliates own or hold any rights to acquire any additional
shares of the capital stock of BWI (other than pursuant to BWI Options) or any
interest therein or any voting rights with respect to any additional shares.
2. The Shareholder agrees that all of the Shares beneficially owned
by the Shareholder or its Controlled Affiliates (except shares subject to
unexercised stock options and the shares set forth on Schedule 1 that are
permitted to be transferred ("Permitted Share Transfers") to the extent such
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permitted share transfers have been made), or over which the Shareholder or any
of its Controlled Affiliates has voting power or control, directly or indirectly
(including any common shares of BWI acquired after the date hereof), at the
record date for any
meeting of BWI Shareholders called to consider and vote to approve the Merger
and the Agreement and/or the transactions contemplated thereby will be voted by
the Shareholder or its Controlled Affiliates in favor the Merger and the
Agreement and the transactions contemplated thereby. Any such vote shall be cast
or consent shall be given in accordance with such procedures relating thereto as
shall ensure that it is duly counted for purposes of determining that a quorum
is present and for purposes of recording the results of such vote or consent.
The Shareholder shall deliver to Cardinal upon request a proxy substantially in
the form attached hereto as Annex A, which proxy shall be irrevocable and
coupled with an interest (but subject to termination in the event this letter
agreement is terminated), with the total number of such Shareholder's Shares
(excluding Permitted Share Transfers to the extent such permitted share
transfers have been made) correctly indicated thereon. The Shareholder shall
also use its reasonable efforts to take, or cause to be taken, all action, and
do, or cause to be done, all things necessary or advisable in order to
consummate and make effective the transactions contemplated by this letter
agreement.
3. After the date hereof, the Shareholder agrees that the obligations
under this letter agreement may not be avoided by the Shareholder or any of its
subsidiaries by depositing any Shares in a voting trust or otherwise
transferring any voting interest in any Shares, by agreement or otherwise,
except for transfers subject to the terms of this letter agreement, and any such
Shares shall be voted in compliance with the terms of this letter agreement.
4. The Shareholder agrees to, and will cause any company, trust or
other entity controlled by the Shareholder to, and will cause its Controlled
Affiliates to, cooperate fully with you in connection with the Agreement and the
transactions contemplated thereby. The Shareholder agrees that, during the term
of this letter agreement, it will not, and will not permit any such company,
trust or other entity to, and will not permit any of its Controlled Affiliates
to, directly or indirectly (including through its directors, officers,
employees, investment bankers, attorneys, accountants or other advisors or
representatives) 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 recapitalization, merger, consolidation or
other business combination involving BWI, or acquisition of any capital stock
(other than upon exercise of BWI Options which are outstanding as of the date
hereof) or a material amount of the assets of BWI and its subsidiaries, taken as
a whole, in a single transaction or a series of related transactions, or any
acquisition by BWI of any material assets or capital stock of any other person
(other than acquisitions of capital stock or assets of any other person that are
not, individually or in the aggregate, material to BWI and its subsidiaries,
taken as a whole), or any combination of the foregoing (a "Competing
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Transaction"), or negotiate, explore or otherwise engage in discussions with any
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person (other than Cardinal, Subcorp or their respective directors, officers,
employees, agents and representatives) with respect to any Competing Transaction
or enter into any agreement, arrangement or understanding with respect to any
Competing Transaction or agree to or otherwise assist in the effectuation of any
Competing Transaction; provided, however, that nothing herein shall prevent the
Shareholder from taking any action, after having notified Cardinal thereof, or
omitting to take any action solely as a member of the Board of Directors of BWI
required so as not to violate such Shareholder's fiduciary obligations as a
Director after consultation with outside counsel.
5. The Shareholder agrees that in the event (a) of any stock
dividend, stock split, recapitalization, reclassification, combination or
exchange of shares of stock of BWI or any BWI subsidiary on, of or affecting the
Shares of such Shareholder, (b) such Shareholder purchases or otherwise acquires
beneficial ownership of any shares of capital stock of BWI or any BWI subsidiary
after the execution of this letter agreement (including by conversion), or (c)
such Shareholder voluntarily acquires the right to vote or share in the voting
of any shares of capital stock of BWI or any BWI subsidiary other than the
Shares (collectively, "New Shares"), such Shareholder shall deliver promptly to
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Cardinal upon request an irrevocable proxy substantially in the form attached
hereto as Annex A (but subject to termination in the event this letter agreement
is terminated) with respect to such New Shares. The Shareholder also agrees that
any New Shares acquired or purchased by him shall be subject to the terms of
this Agreement and shall constitute Shares to the same extent as if they were
owned by such Shareholder on the date hereof.
6. The Shareholder shall execute and deliver on a timely basis a
letter agreement substantially in the form of Exhibit A to the Merger Agreement,
when and if requested by you prior to the Effective Time.
7. The Shareholder has all necessary power and authority to enter
into this letter agreement. This letter agreement is the legal, valid and
binding agreement of the Shareholder, and is enforceable against the Shareholder
in accordance with its terms.
8. The Shareholder agrees that damages are an inadequate remedy for
the breach by Shareholder of any term or condition of this letter agreement and
that you shall be entitled to a temporary restraining order and preliminary and
permanent injunctive relief in order to enforce our agreements herein.
9. Except to the extent that the laws of the jurisdiction of
organization of any party hereto, or any other jurisdiction, are mandatorily
applicable to matters arising under or in connection with this letter agreement,
this letter agreement shall be governed by the laws of the State of Indiana. All
actions and proceedings arising out of or relating to this letter agreement
shall be heard and determined in any state or federal court sitting in Indiana.
10. Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of the state courts of Indiana and to the jurisdiction of the
United States District Court for the Southern District of Indiana, for the
purpose of any action or proceeding arising out of or relating to this letter
agreement and each of the parties hereto irrevocably agrees that all claims in
respect to such action or proceeding may be heard and determined exclusively in
any state or federal court sitting in Indiana. Each of the parties hereto
agrees that a final judgment in any action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Each of the parties hereto irrevocably consents to the
service of any summons and complaint and any other process in any other action
or proceeding relating hereto, on behalf of itself or its property, by the
personal delivery of copies of such process to such party. Nothing in this
Section 10 shall affect the right of any party hereto to serve legal process in
any other manner permitted by law.
11. Any successor, assignee or transferee (including a successor,
assignee or transferee as a result of the death of the Shareholder, such as an
executor or heir) shall be bound by the terms hereof, and the Shareholder shall
take any and all actions necessary to obtain and deliver to Cardinal the written
confirmation from such successor, assignee or transferee that it is bound by the
terms hereof.
12. This letter agreement constitutes the entire agreement among the
parties hereto with respect to the matters covered hereby and supersedes all
prior agreements, understandings or representations among the parties written or
oral, with respect to the subject matter hereof.
This letter agreement may be terminated at the option of any party at
any time upon the earlier of (i) the date on which the Agreement is terminated
and (ii) the Effective Time. Please confirm that the foregoing correctly states
the understanding between us by signing and returning to me a counterpart
hereof.
Very truly yours,
By: /s/ Xxxxxxx X. Xxxxxxx
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Confirmed on the date
first above written.
Cardinal Health, Inc.
By: /s/ Xxxxxxx X. Xxxx
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