EXECUTION COPY
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March 16, 2001
AmeriSource Health Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000-0000
Re: Support/Voting Agreement
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Dear Sirs:
The undersigned understands that AmeriSource Health Corporation
("AmeriSource"), Bergen Xxxxxxxx Corporation ("Bergen"), AABB Corporation, A-Sub
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Acquisition Corp. and B-Sub Acquisition Corp. are entering into an Agreement and
Plan of Merger, dated the date hereof (the "Merger Agreement"), providing for,
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among other things, the combination of the businesses of AmeriSource and Bergen
in a "merger-of-equals" transaction (the "Merger").
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The undersigned is a shareholder of Bergen (the "Shareholder") and is
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entering into this letter agreement to induce you to enter into the Merger
Agreement and to consummate the transactions contemplated thereby.
The Shareholder confirms its agreement with you as follows:
1. The Shareholder represents, warrants and agrees that Schedule I
annexed hereto sets forth the shares of the capital stock of Bergen, and options
to purchase such shares, of which the Shareholder is the record or beneficial
owner (the "Shares") and that the Shareholder is on the date hereof the lawful
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owner of the number of Shares set forth in Schedule I, free and clear of all
liens, charges, encumbrances, voting agreements and commitments of any kind,
except as disclosed previously in writing to AmeriSource. Except for the Shares
set forth in Schedule I, the Shareholder does not own or hold any rights to
acquire any additional shares of the capital stock of Bergen or any interest
therein or any voting rights with respect to any additional shares.
2. The Shareholder agrees that it will not, and will not permit any
company, trust or other entity controlled by the Shareholder to, contract to
sell, sell or otherwise transfer or dispose of more than 5% of the Shares or any
interest therein or securities convertible thereinto or any voting rights with
respect thereto, other than (i) pursuant to the Merger, (ii) with your prior
written consent or (iii) to the extent contractually required (as disclosed
previously in writing to AmeriSource).
3. The Shareholder agrees to, will cause any company, trust or
other entity controlled by the Shareholder to, and will use its reasonable best
efforts to cause its affiliates (as defined under the Securities Exchange Act of
1934, as amended) to, cooperate fully with you in connection with the Merger
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 use its reasonable best
efforts to not permit any of its affiliates to, directly or indirectly
(including through its directors, officers, employees or other 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 Bergen Competing Transaction (as defined in the Merger
Agreement), or negotiate or otherwise engage in discussions with any person
(other than AmeriSource or its respective directors, officers, employees, agents
and representatives) with respect to any Bergen Competing Transaction or enter
into any agreement, arrangement or understanding with respect to any Bergen
Competing Transaction or agree to or otherwise assist in the effectuation of any
Bergen Competing Transaction; provided, however, that nothing herein shall
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prevent the Shareholder from taking any action in its capacity as an officer or
director of Bergen that would be permitted to be taken pursuant to the terms of
the Merger Agreement.
4. The Shareholder irrevocably and unconditionally agrees that all
of the Shares beneficially owned by the Shareholder (except shares subject to
unexercised stock options), or over which the Shareholder has voting power or
control, directly or indirectly (including any common shares of Bergen acquired
after the date hereof), at the record date for any meeting of shareholders of
Bergen (and any adjournment thereof) called to consider and vote to approve and
adopt the Merger, the Merger Agreement, all agreements related to the Merger,
any actions related thereto and/or the transactions contemplated thereby and/or
any Bergen Competing Transaction will be voted in favor of the approval and
adoption of the Merger, the Merger Agreement, all agreements related to the
Merger, any actions related thereto and/or the transactions contemplated thereby
and that the Shareholder will not vote such Shares in favor of the approval of
(i) any Bergen Competing Transaction during the term of this letter agreement,
(ii) reorganization, recapitalization, liquidation or winding up of Bergen or
any other extraordinary transaction involving Bergen, other than as contemplated
by the Merger Agreement, (iii) corporate action the consummation of which would
frustrate the purposes or prevent or delay the consummation of the transactions
contemplated by the Merger Agreement, or (iv) other matters relating to, or in
connection with, any of clauses (i) through (iii) above.
5. The Shareholder hereby revokes any and all previous proxies
granted with respect to the Shares. By entering into this letter agreement, the
Shareholder hereby grants a proxy appointing AmeriSource and each of its
designees as the Shareholder's attorney-in-fact and proxy, with full power of
substitution, for and in the Shareholder's name, to vote, express, consent or
dissent, or otherwise to utilize such voting power in the manner contemplated by
Section 4 above as AmeriSource or its proxy or substitute shall, in
AmeriSource's sole discretion, deem proper with respect to the Shares
beneficially owned by the Shareholder. The proxy granted by each Shareholder
pursuant to this Section 5 is irrevocable (for as long as any such Share is
beneficially owned by the Shareholder) and coupled with an interest as it is
granted
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in consideration of AmeriSource entering into this letter agreement and the
Merger Agreement and incurring certain related fees and expenses. The proxy
granted by each Shareholder shall be revoked upon termination of this letter
agreement, upon the termination of the Merger Agreement, or, with respect to any
Share, upon the Shareholder ceasing to have beneficial ownership of such Share
to the extent permitted by this Agreement, in accordance with its terms.
6. 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.
7. 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.
8. Except to the extent that the laws of the jurisdiction of
organization of any party hereto, or any other jurisdiction, are mandatorily
applicable to the Merger or to matters arising under or in connection with this
letter agreement, this letter 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, in each case 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 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, in each case 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 any
inconvenient forum.
9. This letter agreement constitutes the entire agreement among the
parties in respect to the subject matter hereof and supersedes all prior
agreements and understandings, agreements or representations by or among the
parties, written or oral, with respect to the subject matter hereof.
10. Any provision of this letter agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed, in the
case of an amendment, by each party to this letter agreement or in the case of a
waiver, by the party against whom the waiver is to be effective. This letter
agreement shall terminate upon the termination of the Merger Agreement in
accordance with its terms.
11. Neither this letter agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding
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sentence, this letter agreement shall be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and assigns.
12. This letter agreement may be executed in counterparts, which
together shall constitute one and the same agreement. The parties may execute
more than one copy of the letter agreement, each of which shall constitute an
original.
13. If any term, provision, covenant or restriction contained in
this letter agreement is held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable or against its regulatory policy,
the remainder of the terms, provisions, covenants and restrictions contained in
this letter agreement shall remain in full force and effect and shall in no way
be affected, impaired or invalidated.
14. Capitalized terms not defined in this letter agreement shall
have the meaning assigned to them in the Merger Agreement.
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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 Merger 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:_____________________________________
Xxxxxx X. Xxxxxxx
Confirmed on the date
first above written.
AmeriSource Health Corporation
By:_________________________
R. Xxxxx Xxxx
Chairman and Chief Executive
Officer
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Schedule I
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Shareholder's Ownership Interest in Bergen
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Shares of Bergen capital stock:
4,854,377
Options to purchase shares of Bergen capital stock:
477,084
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