Execution Copy
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STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT ("Option Agreement") dated March 16, 2001,
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between AmeriSource Health Corporation, a Delaware corporation ("AmeriSource"),
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and Bergen Xxxxxxxx Corporation, a New Jersey corporation ("Bergen").
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WITNESSETH:
WHEREAS, the Board of Directors of AmeriSource and the Board of
Directors of Bergen have approved an Agreement and Plan of Merger dated as of
the date hereof (the "Merger Agreement"), among AmeriSource, Bergen, AABB
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Corporation, A-Sub Acquisition Corp. and B-Sub Acquisition Corp., providing for
the combination of the businesses of AmeriSource and Bergen in a "merger-of-
equals" transaction;
WHEREAS, as a condition to AmeriSource's entering into the Merger
Agreement, AmeriSource has required that Bergen agree, and Bergen has agreed, to
grant to AmeriSource the option set forth herein to purchase authorized but
unissued shares of Bergen Common Stock;
NOW, THEREFORE, to induce AmeriSource to enter into the Merger
Agreement and in consideration of the premises herein contained, the parties
agree as follows:
1. Definitions.
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Capitalized terms used but not defined herein shall have the same
meanings as in the Merger Agreement.
2. Grant of Option.
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Subject to the terms and conditions set forth herein, Bergen hereby
grants to AmeriSource an unconditional and irrevocable option (the "Option") to
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purchase up to 26,961,420 authorized and unissued shares of Bergen Common Stock
(the "Option Shares") at a price per share equal to $17.9376 (the "Purchase
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Price") payable in cash as provided in Section 4 hereof.
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3. Exercise and Termination of Option.
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(a) AmeriSource may exercise the Option, in whole or in part, at any time
or from time to time during the period (the "Option Exercise Period") commencing
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from the time a Purchase Event (as defined below) shall have occurred and
terminating 5:00 p.m.
New York City time on the date which is 180 days following the occurrence of the
Purchase Event (the "Termination Date"), whereupon the Option, to the extent it
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shall not have been exercised, shall terminate and be of no further force and
effect.
If the Option cannot be exercised prior to the Termination Date as a
result of any injunction, order or similar restraint issued by a court of
competent jurisdiction, the Option Exercise Period shall terminate on the later
of (i) the Termination Date and (ii) the 10th business day after such
injunction, order or restraint shall have been dissolved or shall have become
permanent and no longer subject to appeal, as the case may be, but in no event
later than 18 months after the occurrence of a Purchase Event.
(b) This Option Agreement shall terminate, if but only if no Purchase
Event shall have occurred prior thereto, upon the occurrence of any of the
following, as applicable:
(i) at the Effective Time of the Merger; or
(ii) upon the termination of the Merger Agreement prior to the
occurrence of a Purchase Event unless, in the case of this clause (ii),
AmeriSource has the right to receive a termination fee pursuant to Section
8.5(b)(i) of the Merger Agreement following such termination upon the
occurrence of certain events, in which case the Option will not terminate
until the later of (x) 180 days following the time such termination fee
becomes payable and (y) the expiration of the period in which an event may
occur which would result in AmeriSource having the right to receive a
termination fee pursuant to Section 8.5(b)(i) of the Merger Agreement.
Notwithstanding the termination of the Option, AmeriSource shall be
entitled to purchase those Option Shares with respect to which it has exercised
the Option in accordance with the terms hereof prior to the termination of the
Option. The termination of the Option shall not affect any rights hereunder
which by their terms extend beyond the date of such termination.
(c) As used herein, a "Purchase Event" shall mean an event the result of
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which is that a fee is required to be paid by Bergen to AmeriSource pursuant to
Section 8.5(b)(i) of the Merger Agreement.
(d) As used herein, the terms "Beneficial Ownership", "Beneficial Owner"
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and "Beneficially Own" shall have the meanings ascribed to them in Rule 13d-3
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under the Exchange Act. As used herein, "person" shall have the meaning
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specified in Sections 3(a)(9) and 13(d)(3) of the Exchange Act.
(e) Whenever AmeriSource wishes to exercise the Option, it shall deliver
to Bergen a written notice (a "Notice of Exercise," the date of receipt of which
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being herein referred to as the "Notice Date") specifying (i) the total number
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of shares it intends to purchase pursuant to such exercise and (ii) a place and
date not earlier than two business days nor later than 60 calendar days from the
Notice Date for the closing of such
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purchase (a "Closing Date"); provided that if any closing of the purchase and
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sale pursuant to the Option (a "Closing") cannot be consummated by reason of any
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Applicable Law, the period of time that otherwise would run from the Notice Date
pursuant to this sentence shall run instead from the date on which such
restriction on consummation has expired or been terminated; and, provided,
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further, that, without limiting the foregoing, if prior notification to or
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approval of any Governmental Authority is required in connection with such
purchase, AmeriSource and, if applicable, Bergen shall promptly file the
required notice or application for approval and shall expeditiously process the
same (and Bergen shall cooperate with AmeriSource in the filing of any such
notice or application and the obtaining of any such approval), and the period of
time that otherwise would run from the Notice Date pursuant to this sentence
shall run instead from the date on which, as the case may be, (i) any required
notification period has expired or been terminated or (ii) such approval has
been obtained, and in either event, any requisite waiting period has passed.
(f) In the event (i) AmeriSource receives official notice that an approval
of any Governmental Authority required for the purchase of Option Shares would
not be issued or granted or (ii) a Closing Date shall not have occurred within
18 months after the related Notice Date due to the failure to obtain any such
required approval, AmeriSource shall be entitled to exercise its right as set
forth in Section 7 or, to the extent legally permitted, to exercise the Option
in connection with the resale of Option Shares pursuant to a registration
statement as provided in Section 9. The provisions of this Section 3 and
Section 6 shall apply with appropriate adjustments to any such exercise.
4. Payment and Delivery of Certificates.
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(a) At each Closing, AmeriSource shall pay to Bergen the aggregate
Purchase Price for the Option Shares purchased at such Closing pursuant to the
exercise of the Option in immediately available funds by wire transfer to a bank
account designated not later than one business day prior to the Closing Date for
such Closing by Bergen.
(b) At such Closing, simultaneously with the delivery of the aggregate
Purchase Price as provided in Section 4(a) hereof, Bergen shall deliver to
AmeriSource a certificate or certificates representing the number of Option
Shares then being purchased by AmeriSource, registered in the name of
AmeriSource or as designated in writing by AmeriSource, which Option Shares
shall be fully paid and nonassessable and free and clear of all liens, claims,
charges and encumbrances of any kind whatsoever.
(c) If at the time of issuance of any Option Shares pursuant to any
exercise of the Option, Bergen shall have issued any share purchase rights or
similar securities to holders of Bergen Common Stock, then each such Option
Share shall also represent rights with terms substantially the same as and at
least as favorable to AmeriSource as those issued to other holders of Bergen
Common Stock.
(d) Certificates for Option Shares delivered at any Closing hereunder
shall be endorsed with a restrictive legend which shall read substantially as
follows:
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"The shares represented by this certificate are subject
to certain provisions of an agreement between the
registered holder hereof and Bergen Xxxxxxxx
Corporation, a copy of which is on file at the
principal office of Bergen Xxxxxxxx Corporation, have
not been registered under the Securities Act of 1933,
as amended, and are subject to resale restrictions
arising under the Securities Act of 1933, as amended,
and any applicable state securities laws. A copy of
such agreement will be provided to the holder hereof
without charge upon receipt by Bergen Xxxxxxxx
Corporation of a written request therefor."
It is understood and agreed that the above legend shall be removed by delivery
of substitute certificate(s) without such legend in connection with a transfer
or sale if (i) Bergen has been furnished with an opinion of counsel, reasonably
satisfactory to counsel for Bergen, that such transfer or sale will not violate
the Securities Act or applicable securities laws of any state or (ii) such
transfer or sale shall have been registered and qualified pursuant to the
Securities Act and any applicable state securities laws.
5. Representations and Warranties; Covenants.
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(a) Bergen hereby represents and warrants to AmeriSource that:
(i) Bergen has full corporate right, power and authority to execute
and deliver this Option Agreement and to perform all of its obligations
hereunder;
(ii) such execution, delivery and performance have been duly
authorized by all requisite corporate action by Bergen, and no other
corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and
delivered by Bergen and represents a valid and legally binding obligation
of Bergen, enforceable against Bergen in accordance with its terms;
(iv) Bergen has taken all necessary corporate action to authorize and
reserve and permit it to issue and, at all times from the date hereof
through the date of the exercise in full or the expiration or termination
of the Option, shall have reserved for issuance upon exercise of the
Option, 26,961,420 shares of Bergen Common Stock (subject to adjustment as
provided herein), all of which, upon issuance in accordance with the terms
of this Option Agreement, shall be duly authorized, validly issued, fully
paid and nonassessable, and shall be delivered free and clear of all
claims, liens, encumbrances and security interests and not subject to any
preemptive rights of any shareholder of Bergen; and
(v) The Bergen Rights Agreement has been amended, and will remain
amended (and no replacement plan will be adopted), so as to provide that
none of AmeriSource and its affiliates will become an "Acquiring Person"
and that no "Stock Acquisition Date" or "Distribution Date" (as such terms
are defined in the
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Bergen Rights Agreement) will occur as a result of the execution of this
Option Agreement, the grant of the Option hereunder or the acquisition or
transfer of shares of Bergen Common Stock by AmeriSource pursuant to the
exercise, in whole or in part, of the Option.
(b) Bergen hereby agrees that, prior to the termination of the Option
pursuant to Section 3(a) hereof, Bergen shall not take, or allow to be taken,
any action that could result in the representations and warranties set forth in
Section 5(a)(v) hereof becoming false or inaccurate.
(c) AmeriSource hereby represents and warrants to Bergen that:
(i) AmeriSource has full corporate right, power and authority to
execute and deliver this Option Agreement and to perform all of its
obligations hereunder;
(ii) such execution, delivery and performance have been authorized by
all requisite corporate action by AmeriSource, and no other corporate
proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and
delivered by AmeriSource and represents a valid and legally binding
obligation of AmeriSource, enforceable against AmeriSource in accordance
with its terms; and
(iv) any Bergen Common Stock acquired by AmeriSource upon exercise of
the Option will not be transferred or otherwise disposed of except in
compliance with the Securities Act.
6. Adjustment upon Changes in Capitalization.
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In the event of any change in Bergen Common Stock by reason of stock
dividends, split-ups, recapitalizations or the like or in the event of any new
issuance of Bergen Common Stock (other than an issuance pursuant to the Option),
the type and number of shares subject to the Option, and the Purchase Price,
shall be adjusted appropriately.
7. Repurchase.
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(a) At the written request of AmeriSource, at any time during the Option
Exercise Period and, if a Notice of Exercise has been given but the related
Closing has not occurred, during the period from the Notice Date to the Closing
Date (the "AmeriSource Repurchase Period"), Bergen shall repurchase the Option
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from AmeriSource together with all (but not less than all) Option Shares
purchased by AmeriSource pursuant thereto with respect to which AmeriSource then
has Beneficial Ownership, at a price (when calculated on a per share basis, the
"Per Share Repurchase Price") equal to the sum of:
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(i) The difference between (x) the "Market/Tender Offer Price" for
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shares of Bergen Common Stock (defined as the higher of (1) the highest
price per share at which a tender or exchange offer has been made for
shares of Bergen Common Stock or (2) the highest closing price per share of
Bergen Common Stock as reported by the NYSE Composite Tape, in each case,
for any day within that portion of the AmeriSource Repurchase Period which
precedes the date AmeriSource gives notice of the required repurchase under
this Section 7) and (y) the Purchase Price (subject to adjustment as
provided in Section 6), multiplied by the number of Option Shares with
respect to which the Option has not been exercised or has been exercised
but the related Closing has not occurred, but only if such Market/Tender
Offer Price is greater than such exercise price; and
(ii) The greater of the Market/Tender Offer Price and the Purchase
Price paid for any Option Shares acquired upon exercise of the Option,
multiplied by the number of Option Shares so acquired.
(b) In the event AmeriSource exercises its rights under this Section 7,
Bergen shall, within 10 business days thereafter, pay the required amount to
AmeriSource by wire transfer of immediately available funds to an account
designated by AmeriSource and AmeriSource shall surrender to Bergen the Option
and the certificates evidencing any Option Shares acquired thereunder with
respect to which AmeriSource then has Beneficial Ownership.
(c) In determining the Market/Tender Offer Price, the value of any
consideration other than cash shall be determined by an independent nationally
recognized investment banking firm selected by AmeriSource with the consent of
Bergen, which consent shall not be unreasonably withheld.
(d) Notwithstanding any provision to the contrary in this Option
Agreement, AmeriSource may not exercise its rights pursuant to this Section 7 in
a manner that would result in Total Profit (as defined below) of more than the
Profit Cap (as defined below); provided, however, that nothing in this sentence
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shall limit AmeriSource's ability to exercise the Option in accordance with its
terms. As used herein, the term "Total Profit" means the aggregate (before
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income taxes) of the following: (i) all amounts received by AmeriSource or
concurrently being paid to AmeriSource pursuant to Section 7 for the repurchase
of the unexercised portion of the Option, (ii) (A) the amounts received by
AmeriSource or concurrently being paid to AmeriSource pursuant to the sale of
Option Shares (or any other securities into which such Option Shares are
converted or exchanged), including sales made to Bergen or pursuant to a
registration statement under the Securities Act or any exemption therefrom, less
(B) AmeriSource's aggregate Purchase Price for such Option Shares and (iii) all
amounts received by AmeriSource from Bergen or concurrently being paid to
AmeriSource pursuant to Section 8.5 of the Merger Agreement (other than for
payments with respect to Expenses). As used herein, the term "Profit Cap" shall
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mean $125,000,000.
8. Repurchase at Option of Bergen.
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Except to the extent that AmeriSource shall have previously exercised
its rights under Section 7, at the request of Bergen during the six-month period
commencing 180 days following the first occurrence of a Purchase Event, Bergen
may repurchase from AmeriSource, and AmeriSource shall sell to Bergen, all (but
not less than all) of the Bergen Common Stock acquired by AmeriSource pursuant
to the Option and with respect to which AmeriSource has Beneficial Ownership at
the time of such repurchase at a price per share equal to the greater of (i) the
Market/Tender Offer Price per share (calculated in the manner set forth in
Section 7(a)(i) hereof but utilizing the period beginning on the occurrence of a
Purchase Event and ending on the date Bergen exercises its repurchase right
pursuant to this Section 8), (ii) the Per Share Repurchase Price or (iii) the
sum of (A) the aggregate Purchase Price of the shares so repurchased plus (B)
interest on the aggregate Purchase Price paid for the shares so repurchased from
the date of purchase by AmeriSource to the date of repurchase at the highest
rate of interest publicly announced by Citibank, N.A., in the City of New York,
as its prime or base lending or reference rate during such period, less any
dividends received on the shares so repurchased, which sum shall be divided by
the number of Option Shares to be repurchased by Bergen. Any repurchase under
this Section 8 shall be consummated in accordance with Section 7(b).
9. Registration Rights.
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At any time within two years after a Closing, Bergen shall, if
requested by AmeriSource or any Affiliate of AmeriSource that is a Beneficial
Owner of Option Shares (each a "Holder"), as expeditiously as possible file a
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registration statement on a form for general use under the Securities Act if
necessary in order to permit the sale or other disposition of Option Shares in
accordance with the intended method of sale or other disposition requested by
any such Holder. Each such Holder shall provide all information reasonably
requested by Bergen for inclusion in any registration statement to be filed
hereunder. Bergen shall use its reasonable best efforts to cause such
registration statement first to become effective and then to remain effective
for such period not in excess of 180 days from the day such registration
statement first becomes effective as may be reasonably necessary to effect such
sales or other dispositions. The registration effected under this Section 9
shall be at Bergen's expense except for underwriting commissions and the fees
and disbursements of such Holders' counsel attributable to the registration of
such Option Shares. In no event shall Bergen be required to effect more than
two registrations hereunder. The filing of any registration statement required
hereunder may be delayed for such period of time (not to exceed 90 days) (i) as
may reasonably be required to facilitate any public distribution by Bergen of
Bergen Common Stock, (ii) if a special audit of Bergen would otherwise be
required in connection therewith or (iii) during which Bergen is in possession
of material information concerning it, its business affairs or a material
transaction in each case the public disclosure of which Bergen reasonably
determines in good faith could have a material adverse effect on Bergen or
significantly disrupt such material transaction. If requested by any such
Holder in connection with such registration, Bergen shall become a party to any
underwriting agreement relating to the sale of such shares on terms and
including obligations and indemnities which are customary for parties similarly
situated. Upon receiving any request for registration under this Section 9 from
any Holder, Bergen agrees to send a copy thereof to any other person known to
Bergen to be entitled to
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registration rights under this Section 9, in each case by promptly mailing the
same, postage prepaid, to the address of record of the persons entitled to
receive such copies.
10. Profit Limitation.
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(a) Notwithstanding any other provision of this Agreement, in no event
shall AmeriSource's Total Profit exceed the Profit Cap and, if it otherwise
would exceed such amount, AmeriSource, at its sole election, shall either (i)
deliver to Bergen for cancellation Option Shares previously purchased by
AmeriSource, (ii) pay cash or other consideration to Bergen, (iii) reduce the
amount of the fee payable to AmeriSource under Section 8.5 of the Merger
Agreement (other than for payments with respect to Expenses) or (iv) undertake
any combination thereof, so that AmeriSource's Total Profit shall not exceed the
Profit Cap after taking into account the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, the Option may
not be exercised for a number of Option Shares that would, as of the Notice
Date, result in a Notional Total Profit (as defined below) of more than the
Profit Cap, and, if exercise of the Option otherwise would exceed the Profit
Cap, AmeriSource, at its sole discretion, may increase the Exercise Price for
that number of Option Shares set forth in the Exercise Notice so that the
Notional Total Profit shall not exceed the Profit Cap; provided, however, that
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nothing in this sentence shall restrict any exercise of the Option otherwise
permitted by this Section 10(b) on any subsequent date at the Purchase Price set
forth in Section 2 if such exercise would not then be restricted under this
Section 10(b). As used herein, the term "Notional Total Profit" means, with
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respect to any number of Option Shares as to which AmeriSource may propose to
exercise the Option, the Total Profit determined as of the Notice Date assuming
that the Option was exercised on such date for such number of Option Shares and
assuming such Option Shares, together with all other Option Shares held by
AmeriSource and its affiliates as of such date, were sold for cash at the
closing market price per share for Bergen Common Stock as reported by the NYSE
Composite Tape as of the close of business on the preceding trading day (less
customary brokerage commissions) and including all amounts theretofore received
or concurrently being paid to AmeriSource pursuant to clauses (i), (ii) and
(iii) of the definition of Total Profit.
11. Listing.
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If Bergen Common Stock or any other securities to be acquired upon
exercise of the Option are then listed on the NYSE or any other national
securities exchange, Bergen, upon the request of AmeriSource, will promptly file
an application to list the Option Shares or other securities to be acquired upon
exercise of the Option on the NYSE or such other exchange and will use its best
efforts to obtain approval of such listings as soon as practicable.
12. Survival.
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The representations, warranties, covenants and agreements of the
parties hereto shall survive any Closing.
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13. Severability.
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Any term, provision, covenant or restriction contained in this Option
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 Option
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 Option Agreement that is so found to be so broad
as to be unenforceable shall be interpreted to be as broad as is enforceable.
14. Miscellaneous.
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(a) Expenses. Each of the parties hereto shall pay all costs and expenses
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incurred by it or on its behalf in connection with the transactions contemplated
hereunder, including fees and expenses of its own financial consultants,
investment bankers, accountants and counsel, except as otherwise provided
herein.
(b) Entire Agreement. This Option Agreement, the Support Agreement, the
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Merger Agreement (including the documents and the instruments referred to
therein) and the Confidentiality Agreement constitute the entire agreement
between the parties and supersede 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.
(c) Successors; No Third Party Beneficiaries. The terms and conditions of
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this Option Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and assigns. Nothing in this
Option 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 Option
Agreement, except as expressly provided herein.
(d) Transferability of the Option. Neither of the parties hereto may
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assign any of its rights or obligations under this Option Agreement or the
Option created hereunder to any other person, without the express written
consent of the other party, except AmeriSource may assign, in whole on in part,
its rights and obligations hereunder to any wholly owned subsidiary of
AmeriSource, provided that no such assignment shall relieve AmeriSource of its
obligations hereunder. Any purported assignment in violation hereof shall be
null and void.
(e) Notices. All notices or other communications which are required or
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permitted hereunder shall be in writing and sufficient if delivered in
accordance with Section 9.2 of the Merger Agreement (which is incorporated
herein by reference).
(f) Counterparts. This Option Agreement may be executed in counterparts,
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and each such counterpart shall be deemed to be an original instrument, but both
such counterparts together shall constitute but one agreement.
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(g) Further Assurances. In the event of any exercise of the Option by
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AmeriSource, Bergen and AmeriSource shall execute and deliver all other
documents and instruments and take all other action that may be reasonably
necessary in order to consummate the transactions provided for by such exercise.
(h) Specific Performance. The parties hereto agree that if for any reason
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AmeriSource or Bergen shall have failed to perform its obligations under this
Option Agreement, then either party hereto seeking to enforce this Option
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 either
party hereto may have against the other party hereto for any failure to perform
its obligations under this Option Agreement.
(i) Governing Law. Except to the extent that the laws of the jurisdiction
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of organization of any party hereto, or any other jurisdiction, are mandatorily
applicable to matters arising under or in connection with this Option Agreement,
this Option Agreement shall be governed by the laws of the State of Delaware
without giving effect to the conflict of laws principals 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 9.2 of the Merger Agreement shall be
effective service of process for any Action brought against it 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.
(j) Regulatory Approvals; Section 16(b). If, in connection with the
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exercise of the Option under Section 3, prior notification to or approval of any
Governmental Authority is required, then the required notice or application for
approval shall be promptly filed and/or expeditiously processed by Bergen and
periods of time that otherwise would run pursuant hereto (if any) shall run
instead from the date on which any such required notification period has expired
or been terminated or such approval has been obtained, and in either event, any
requisite waiting period shall have passed. Periods of time that otherwise
would run pursuant to this Agreement shall also be extended to the extent
necessary in order to avoid liability under Section 16(b) of the Exchange Act.
(k) Waiver and Amendment. Any provision of this Option Agreement may be
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waived at any time by the party that is entitled to the benefits of such
provision. This
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Option Agreement may not be modified, amended, altered or supplemented except
upon the execution and delivery of a written agreement executed by the parties
hereto.
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IN WITNESS WHEREOF, AmeriSource and Bergen have caused this Option
Agreement to be executed by its officers thereunto duly authorized, all as of
the date first written above.
AMERISOURCE HEALTH CORPORATION
By:__________________________
R. Xxxxx Xxxx
Chairman and Chief Executive
Officer
BERGEN XXXXXXXX CORPORATION
By:___________________________
Xxxxxx X. Xxxxxxx
Chairman and Chief Executive
Officer
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