Exhibit 3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 23, 1998, between Xxxxx X. Xxxxx
(the "Shareholder") and Omnicare, Inc., a Delaware corporation ("Omni").
A. The Shareholder is the record and beneficial owner of 4,332,453
issued and outstanding shares (together with any shares acquired after the
date hereof, the "Shares") of common stock, $.0001 par value, of CompScript,
Inc., a Florida corporation ("CSI" or the "Company"), which Shares represent
approximately 31% of the currently issued and outstanding shares of CSI's
common stock.
B. In order to induce Omni to enter into the Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), by and between
CSI and Omni, Omni has requested that the Shareholder enter into this
Agreement with respect to the Shares.
C. Unless otherwise defined herein, all capitalized terms used in this
Agreement shall have the meanings given to them in the Merger Agreement.
For good and valuable consideration, the adequacy and receipt of which
are hereby acknowledged, and in order to induce Omni to enter into the Merger
Agreement, Omni and the Shareholder hereby agree as follows:
1. Covenants.
(a) At any meeting of shareholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including
by written consent) with respect to the Merger and the Merger Agreement is
sought, the Shareholder shall, including by initiating a written consent
solicitation if requested by Omni, vote (or cause to be voted) the
Shareholder's Shares in favor of the Merger, the adoption by the Company of
the Merger Agreement and the approval of the other transactions contemplated
by the Merger Agreement.
(b) At any meeting of shareholders of the Company or at any adjournment
thereof or in any other circumstances upon which the Shareholder's vote,
consent or other approval is sought, the Shareholder shall vote (or cause to
be voted) such Shareholder's Shares against (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company or its
Subsidiaries or any other Transaction Proposal (as defined in the Merger
Agreement) (collectively, "Alternative Transactions") or (ii) any amendment
of the Company's Amended and Restated Articles of Incorporation or by-laws or
other proposal or transaction involving the Company or any of its
subsidiaries, which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify, the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement (collectively, "Frustrating Transactions").
(c) The Shareholder shall not, (i) sell, transfer, pledge, assign or
otherwise dispose of, or enter into any contract, option or other arrangement
(including any profit sharing arrangement) or understanding with respect to
the sale, transfer, pledge, assignment or other disposition of, the Shares to
any person other than Omni or Omni's designee, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust,
power-of-attorney or otherwise, with respect to the Shares or (iii) take any
other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby.
2. Grant of Irrevocable Proxy Coupled with an Interest; Appointment of
Proxy.
(a) The Shareholder hereby irrevocably grants to and appoints any
individual who shall hereafter be designated by Omni, and each of them, such
Shareholder's proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of such Shareholder, to vote such
Shareholder's Shares, or grant a consent or approval in respect of such
Shares, at any meeting of shareholders of the Company or at any adjournment
thereof or in any other circumstances upon which their vote, consent or other
approval is sought, (i) in favor of the Merger, the adoption by the Company
of the Merger Agreement and the approval of the other transactions
contemplated by the Merger Agreement and (ii) against any Alternative
Transaction or Frustrating Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of such Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) THE SHAREHOLDER HEREBY AFFIRMS THAT THE PROXY SET FORTH IN THIS
SECTION 2 IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE UNTIL SUCH TIME AS
THIS AGREEMENT TERMINATES IN ACCORDANCE WITH ITS TERMS. The Shareholder
hereby further affirms that the irrevocable proxy is given in connection with
the execution of the Merger Agreement, and that such irrevocable proxy is
given to secure the performance of the duties of such Shareholder under this
Agreement. Such Shareholder hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in accordance
with the provisions of Section 607.0722 of the FBCA.
3. Representations and Warranties of the Shareholder. The Shareholder
hereby represents and warrants to Omni as follows:
(a) Authorization. The Shareholder has the legal capacity to execute,
deliver and perform this Agreement. This Agreement constitutes a valid and
binding obligation of the Shareholder enforceable against him in accordance
with its terms. If the Shareholder is married and the Shares constitute
community property under applicable law, this Agreement has been duly
authorized, executed and delivered by, and constitutes the valid and binding
agreement of, the Shareholder's spouse enforceable against such spouse in
accordance with its terms.
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(b) No Conflict. The execution, delivery and performance by the
Shareholder of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) result in any breach or violation
of or be in conflict with or constitute a default under term of any law or
agreement or arrangement to which the Shareholder is a party or by which the
Shareholder is bound, (ii) require any filing with or authorization by any
governmental entity or (iii) require any consent or other action by any
person under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration or to a loss of any benefit to
which the Shareholder is entitled under any provision of any agreement or
other instrument binding on the Shareholder.
(c) Ownership of Shares. The Shareholder is the record and beneficial
owner of the Shares free and clear of any and all liens, pledges,
restrictions, charges or other adverse claims of any kind or nature. The
Shareholder has the sole voting power, sole power of disposition, sole power
of conversion, sole power to demand appraisal rights and sole power to agree
to all the matters set forth in this Agreement, in each case with respect to
all of the Shares with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws and the terms of this
Agreement. None of the Shares are subject to any voting trust or other
agreement or arrangement with respect to the voting of such Shares. The
Shareholder's Shares and the certificates representing such Shares are now,
and at all times during the term hereof will be, held by the Shareholder, or
by a nominee or custodian for the benefit of the Shareholder. The Shareholder
owns of record or beneficially no shares of CSI Common Stock other than such
Shareholder's Shares.
(d) Merger Agreement. The Shareholder understands and acknowledges
that Omni is entering into the Merger Agreement in reliance upon the
Shareholder's execution and delivery of this Agreement.
4. Board Approval. The Board of Directors of the Company has, to the
extent required by applicable law, duly and validly authorized and approved
by all necessary corporate action, this Agreement, the Merger Agreement and
the transactions contemplated hereby and thereby, so that by the execution
and delivery hereof no restrictive provision of any "fair price,"
"moratorium," "control-share acquisition," "interested shareholders" or other
similar anti-takeover statute or regulation (including, without limitation,
Sections 607.0901 and 607.0902 of the FBCA) or restrictive provision of any
applicable anti-takeover provision in the Articles of Incorporation or
by-laws of the Company is, or will be, applicable to the Company, Omni, the
Shares, the Merger or any other transaction contemplated by this Agreement.
5. Miscellaneous.
(a) Notices. All notices shall be in writing and shall be given as
follows:
if to the Shareholder to:
Xxxxx X. Xxxxx
CompScript, Inc.
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0000 Xxxxxx Xxxxx Xxxxxxx, X.X.
Xxxx Xxxxx, Xxxxxxx 00000
Telecopy: 000-000-0000
with a copy to:
Atlas, Xxxxxxxx, Trop & Borkson, P.A.
000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: 000-000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
if to Omni to:
Omnicare, Inc.
2800 Chemed Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy: 000-000-0000
with a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 000-000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxx, Esq.
or to such other address as may have been designated in a prior notice
pursuant to this Section. Notices shall be deemed effectively served
and delivered upon receipt.
(b) Binding Effect. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their respective successors and
permitted assigns, but neither this Agreement nor any of the rights or
obligations hereunder shall be assigned by the Shareholder without the prior
written consent of Omni. Except as otherwise specifically provided in this
Agreement, nothing in this Agreement is intended or will be construed to
confer on any person other than the parties hereto any rights or benefits
hereunder.
(c) Governing Law. This Agreement will be governed by and construed
under Florida law, without regard to conflict of laws principles thereof.
(d) Waivers. Compliance with the provisions of this Agreement may be
waived only by a written instrument specifically referring to this Agreement
and signed by the party waiving compliance. No course of dealing, nor any
failure or delay in exercising
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any right, will be construed as a waiver, and no single or partial exercise
of a right will preclude any other or further exercise of that or any other
right.
(e) Modification. No supplement, modification or amendment of this
Agreement will be binding unless made in a written instrument that is signed
by all the parties hereto and that specifically refers to this Agreement.
(f) Entire Agreement. This Agreement and the Merger Agreement are the
exclusive statement of the agreement among the parties hereto concerning the
subject matter hereof.
(g) Severability. If any one or more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected thereby. To the extent permitted by
applicable law, each party waives any provision of law which renders any
provision of this Agreement invalid, illegal or unenforceable in any respect.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each
of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
(i) Enforcement. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in a court of the United States.
This being in addition to any other remedy to which they are entitled at law
or in equity. In addition, each of the parties hereto waives any right to
trial by jury with respect to any claim or proceeding related to or arising
out of this Agreement or any of the transactions contemplated hereby.
(j) Further Assurances. Omni and the Shareholder will execute and
deliver, or cause to be executed and delivered, all further documents and
instruments and use their reasonable best efforts to take, or cause to be
taken, all actions necessary, proper or advisable under applicable Law to
consummate and make effective the transactions contemplated by this Agreement
and to vest the power to vote the Shareholder's Shares as contemplated by
Sections 1 and 2 .
(k) Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the earliest to occur of (i)
consummation of the Merger, (ii) the termination of the Merger Agreement in
accordance with its terms, unless prior to such termination a person or
entity shall have made a Transaction Proposal and (iii) one year from the
date hereof. Sections 1(b) and 2(a)(ii) shall terminate on the earlier of (x)
the date computed in accordance with the preceding sentence and (y) six
months after the termination of the Merger Agreement in accordance with its
terms. Nothing in this Section 5(k) shall relieve the Shareholder from
liability for breach of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
OMNICARE, INC.
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By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: President
/s/ Xxxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxx, the Shareholder
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