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EXHIBIT 4
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of December 14, 1997 (this
"Agreement"), is made and entered into by and among Gulf South Medical Supply,
Inc., a Delaware corporation ("GSMS") and the other parties signatory hereto
(each a "Stockholder").
Preamble
The Stockholder is a stockholder of Physician Sales & Service, Inc.
("PSS") and desires that PSS, PSS Merger Corp., a wholly owned subsidiary of
PSS ("Merger Corp."), and GSMS enter into an Agreement and Plan of Merger dated
the date hereof (as the same may be amended or supplemented, the "Merger
Agreement") with respect to the merger of Merger Corp. with and into GSMS (the
"Merger"), with the result that GSMS becomes a wholly owned subsidiary of PSS.
The Stockholder is executing this Agreement as an inducement to GSMS to enter
into and execute the Merger Agreement.
All capitalized terms used herein which are not defined herein shall
have the same meanings as ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by GSMS
of the Merger Agreement and the mutual covenants, conditions and agreements
contained herein and therein, the parties agree as follows:
1. Representations and Warranties. (a) The Stockholder
severally and not jointly represents and warrants to GSMS as follows:
(i) As of the date hereof, the Stockholder is the record
owner of the PSS Common Stock set forth on Schedule 1 to this
Agreement (such Stockholder's "Shares"). Except for the Stockholder's
Shares, the Stockholder is not the record owner of any shares of PSS
Common Stock (except to the extent the Stockholder disclaims
beneficial ownership in accordance with applicable law). This
Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder,
enforceable in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors rights generally or the availability of equitable
remedies, and the execution and delivery of this Agreement will not
violate or result in a default under any agreement to which
Stockholder is a party.
(ii) Such Stockholder's Shares and the certificates
representing such Shares are now and at all times during the term
hereof will be held by such Stockholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever
that would interfere with the voting of the Shares or the granting of
any proxy, except for any such encumbrances or proxies arising
hereunder.
(iii) The Stockholder understands and acknowledges that
GSMS is entering the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Agreement. The
Stockholder acknowledges that the irrevocable proxy set forth in
Section 4 is granted in consideration for the execution and delivery
of the Merger Agreement by GSMS.
(b) GSMS represents and warrants to Stockholder that this
Agreement has been duly authorized, executed and delivered by and
constitutes a valid and binding agreement of, GSMS, enforceable in
accordance with its terms except as enforceability may be limited by
applicable
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bankruptcy, insolvency or similar laws affecting creditors rights
generally or the availability of equitable remedies, and the execution
and delivery of this Agreement will not violate or result in a default
under any agreement to which GSMS is a party.
2. Voting Agreement.
(a) The Stockholder severally agrees with, and covenants
to, GSMS that at any meeting of stockholders of PSS called to vote
upon the Merger, the Merger Agreement, and any other matters related
thereto, including the amendment to the Articles of Incorporation to
increase the number of authorized shares of PSS Common Stock (the
"Amendment"), or at any adjournment thereof or in any other
circumstances upon which a vote, consent or other approval with
respect to the Merger, the Merger Agreement and the Amendment is
sought, the Stockholder shall vote (or cause to be voted) the
Stockholder's Shares in favor of (i) the Amendment and (ii) the Merger
and the approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement, provided that the
terms of the Merger Agreement shall not have been amended to increase
the Exchange Ratio payable in the Merger to a greater amount of PSS
Common Stock or otherwise to materially and adversely impair the
Stockholder's rights or increase the Stockholder's obligations
thereunder. Stockholder, as a holder of PSS Common Stock, shall be
present in person or by proxy at all meetings of stockholders of PSS
so that all Shares are counted for purposes of determining the
presence of a quorum at such meetings.
(b) This Agreement is intended to bind Stockholder only
with respect to the specific matters set forth herein and solely in
his or her capacity as stockholder, and shall not prohibit, limit or
restrict in any manner Stockholder from acting in Stockholder's
capacity as an officer or director of PSS or exercising or observing
Stockholder's fiduciary duties and responsibilities as an officer and
director of PSS.
3. Covenants. The Stockholder severally agrees with, and
covenants to, GSMS as follows:
(a) Prior to the termination of this Agreement, the
Stockholder shall not (i) transfer (which term shall include, without
limitation, for the purposes of this Agreement, any sale, gift,
pledge, or consent to any transfer of), any or all of the
Stockholder's Shares or any interest therein, except pursuant to the
Merger; (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of such
Shares or any interest therein, (iii) grant any proxy, power of
attorney or other authorization in or with respect to such Shares,
except for this Agreement or (iv) deposit such Shares into a voting
trust or enter into a voting agreement or arrangement with respect to
such Shares.
(b) The Stockholder hereby waives any rights of
appraisal, or rights to dissent from the Merger, that such Stockholder
may have.
4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) The Stockholder hereby irrevocably grants to, and
appoints, Xxxxxx X. Xxxxx, Chief Executive Officer of GSMS, and
Xxxxxxx Xxxxx Xxxxxxxxx, Vice President of GSMS, in their respective
capacities as officers of GSMS, and any individual who shall hereafter
succeed to any such office of GSMS, and each of them individually, the
Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of the
Stockholder, to vote the Stockholder's Shares, or grant a consent or
approval in respect of such Shares in favor of (i) the Amendment and
(ii) the Merger; the execution and delivery of the Merger Agreement
and approval of the terms thereof, and each of the other transactions
contemplated by the Merger Agreement, provided that the terms of the
Merger Agreement shall not have been amended to increase the Exchange
Ratio payable in the Merger to a greater amount of PSS Common Stock or
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otherwise to adversely impair the Stockholder's rights or increase the
Stockholder's obligations thereunder, whether in his capacity as a
stockholder or in any other capacity.
(b) The Stockholder represents that any proxies
heretofore given in respect of the Stockholder's Shares are not
irrevocable, and that any such proxies are hereby revoked.
(c) The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 4 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 the Stockholder under
this Agreement. The Stockholder hereby further affirms that the
irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. The Stockholder hereby ratifies and
confirms all that such irrevocable proxy may lawfully do or cause to
be done by virtue hereof.
5. Certain Events. The Stockholder agrees that this Agreement
and the obligations hereunder shall attach to the Stockholder's Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or otherwise,
including without limitation the Stockholder's successors or assigns. In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of PSS, or the
acquisition of additional shares of PSS Common Stock or other voting securities
of PSS by any Stockholder, the number of Shares subject to the terms of this
Agreement shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares of PSS Common Stock
or other voting securities of PSS issued to or acquired by the Stockholder.
6. Further Assurances. The Stockholder shall, upon request of
GSMS, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by GSMS or to be necessary or desirable to
carry out the provisions hereof and to vest the power to vote such
Stockholder's Shares as contemplated by Section 4 in GSMS and the other
irrevocable proxies described therein at the expense of GSMS.
7. Termination. This Agreement, and all rights and obligations
of the parties hereunder; including without limitation, the proxy set forth in
Section 4, shall terminate upon the first to occur of (i) the Effective Time of
the Merger or (ii) the date upon which the Merger Agreement is terminated in
accordance with its terms.
8. Miscellaneous.
(a) This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same
agreement.
(b) This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement, and
supersedes all prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof.
(c) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of
conflicts of laws thereof.
(d) Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by any of the
parties without the prior written consent of the other parties, except
as expressly contemplated by Section 3(a). Any assignment in
violation of the foregoing shall be void.
(e) The Stockholder agrees that irreparable damage would
occur and that GSMS would not have any adequate remedy at law in the
event that any of the provisions of this
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Agreement were not performed in accordance with their specific terms
or were otherwise breached. It is accordingly agreed that GSMS shall
be entitled to an injunction or injunctions to prevent breaches by the
Stockholder of this Agreement and to enforce specifically the terms
and provisions of this Agreement , this being in addition to any other
remedy to which they are entitled at law or in equity.
(f) If any term, provision, covenant or restriction
herein, or the application thereof to any circumstance, shall, to any
extent, (i) be held by a court of competent jurisdiction to be
invalid, void or unenforceable or (ii) would preclude the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended, or prevent PSS or GSMS
from accounting for the Merger as a pooling of interests, such term,
provision, covenant or restriction shall be modified or voided, as may
be necessary to achieve the intent of the parties to the extent
possible, and the remainder of the terms, provisions, covenants and
restrictions herein and the application thereof to any other
circumstances, shall remain in full force and effect, shall not in any
way be affected, impaired or invalidated, and shall be enforced to the
fullest extent permitted by law.
(g) No amendment, modification or waiver in respect of
this Agreement shall be effective against any party unless it shall be
in writing and signed by such party.
IN WITNESS WHEREOF, the undersigned parties have executed and
delivered this Voting Agreement as of the day and year first above written.
GULF SOUTH MEDICAL SUPPLY, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: President
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"STOCKHOLDER"
/s/ Xxxxxxx X. Xxxxx
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/s/ Xxxx X. Xxxxx, Xx.
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/s/ Xxxxx X. Xxxxx
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/s/ Xxxxx X. Xxxxxxxx
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/s/ Xxxxxxxxx X. Dell
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/s/ Xxxxxx X. Dallas
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/s/ T. O'Xxxx Xxxxxxx
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/s/ Xxxx Xxxxxxx
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/s/ Xxxxxxx Xxxxxx
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/s/ Xxxxxxx X. Xxxxx
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/s/ Xxxxx L.L. Xxxxxx
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SCHEDULE 1
Stockholder Name Class Number of Shares Held
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