Exhibit 10.16
FORM OF VOTING/SUPPORT AGREEMENT
AGREEMENT, dated as of April 28, 1999 (this "Agreement"), among AmeriSource
Health Corporation, a Delaware corporation ("Parent"), Hawk Acquisition Corp., a
Missouri corporation ("Merger Sub"), and Xxxxxxxxx ESOP Capital Partners, A
Minnesota Limited Partnership (the "Stockholder"), as amended and restated as of
May __, 1999.
WHEREAS, the Board of Directors of Parent and the Board of Directors of
X.X. Xxxxx Healthcare, Inc., a Missouri corporation ("X.X. Xxxxx") (capitalized
terms used but not defined herein having the respective meanings given to them
in the Merger Agreement) have approved an Agreement and Plan of Reorganization,
amended and restated as of even date herewith (the "Merger Agreement"),
providing for the merger of a wholly owned subsidiary of Parent with and into
X.X. Xxxxx;
WHEREAS, the Stockholder is the record and beneficial owner of shares of
X.X. Xxxxx common stock, par value $0.01 per share ("X.X. Xxxxx Common Stock"),
Company Options, Company Warrants and/or interests in X.X. Xxxxx Common Stock
through the ESOP, in the amounts and of the types set forth opposite the
Stockholder's name on Annex A hereto (the "Shares");
WHEREAS, as a condition to Parent's entering into the Merger Agreement,
Parent has required that the Stockholder agree, and the Stockholder has agreed,
to enter into this Agreement.
NOW, THEREFORE, to induce Parent to enter into the Merger Agreement and in
consideration of the premises herein contained, the parties agree as follows:
1. Grant of Irrevocable Proxy. (a) Until this Agreement is terminated,
the Stockholder hereby irrevocably appoints Merger Sub, its officers, agents and
nominees, with full power of substitution, as proxy for and attorney in fact of
the Stockholder to act with respect to and vote the Shares, if any, owned by the
Stockholder for and in the name, place and stead of the Stockholder at any
annual, special or other meeting of the holders of shares of the X.X. Xxxxx
Common Stock and at any adjournment or postponement thereof or pursuant to any
written consent in lieu of a meeting, to the fullest extent that the Shares are
entitled to be voted on any matter which may come before such meeting or which
may be the subject of such written consent, in favor of the Merger, the Merger
Agreement and the transactions contemplated thereby. In all other matters, the
Shares shall be voted by and in the manner determined by the Stockholder upon
written notice to Merger Sub. The Stockholder hereby represents that he has not
heretofore granted any irrevocable proxy with respect to the Shares and hereby
revokes any and all proxies which may heretofore have been granted with respect
to the Shares.
(b) The Stockholder understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon the Stockholder's execution and
delivery of this Agreement. The Stockholder hereby affirms that the irrevocable
proxy set forth in this Section 1 is given in connection with and as an
inducement for the execution by Parent of the Merger Agreement and 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
not be revoked. The Stockholder hereby ratifies and confirms all that such proxy
may lawfully do or cause to be done by virtue hereof. This proxy is executed and
intended to be irrevocable in accordance with the provisions of the MGBCL.
2. Agreement Not to Transfer. The Stockholder agrees that, without the
prior written consent of Parent, such Stockholder will not at any time during
the term of this Agreement sell, transfer, assign or otherwise dispose of
("Transfer") or pledge or otherwise encumber, or enter into any contract, option
or other arrangement with respect to the Transfer, pledge or encumbrance of, any
of the Shares, or grant or purport to grant to any person any proxy or voting
right or any right to acquire any of the Shares, or enter into any voting
agreement with any person with respect to any of the Shares, or deposit any of
the Shares into a voting trust, provided that the foregoing shall not prohibit
the Stockholder from incurring a margin loan from a bank or brokerage firm. The
foregoing is in addition to the Stockholder's obligations under Section 3(c).
3. Additional Covenants of the Stockholder. The Stockholder hereby
covenants and agrees with Parent and Merger Sub that, until this Agreement
terminates:
(a) Until the earlier of (i) the Effective Time, (ii) September 1, 1999,
or (iii) the date of termination of the Merger Agreement pursuant to the
provisions of Section 8.1 thereof, the Stockholder will not directly or
indirectly, take any of the following actions with any party other than Parent
and its designees: (a) solicit, encourage, initiate or participate in any
negotiations or discussions with respect to, any offer or proposal to acquire
all, substantially all or a significant portion of the Company's business,
properties or technologies or any portion of the Company Capital Stock (whether
or not outstanding) whether by merger, purchase of assets, or otherwise, or
effect any such transaction, (b) disclose any information not customarily
disclosed to any person concerning the Company's business, technologies or
properties or afford to any person or entity access to its properties,
technologies, books or records, (c) assist or cooperate with any person to make
any proposal to purchase all or any part of the Company Capital Stock or assets,
or (d) enter into any agreement with any person providing for the acquisition of
all or any significant portion of the Company (whether by way of merger,
purchase of assets, tender offer or otherwise). In addition to the foregoing, if
the Stockholder receives, prior to the Effective Time or the termination of the
Merger Agreement, any offer, proposal, or request relating to any of the above,
the Stockholder shall immediately notify Parent thereof, including information
as to the identity of the offer or the party making any such offer or proposal
and the specific terms of such offer or proposal, as the case may be, and such
other information related thereto as Parent may reasonably request.
(b) The Stockholder will not, during the 30 days prior to the Effective
Time, sell, transfer or otherwise dispose of or reduce such Stockholder's risk
(as contemplated by the SEC Accounting Series Release No. 135) with respect to
the Shares or shares of Parent Common Stock that Stockholder may hold. The
Stockholder will not sell, transfer or otherwise dispose of or reduce his risk
(as contemplated by SEC Accounting Series Release No. 135) with respect to any
Parent Common Stock received by him in the Merger or any other shares of Parent
Common Stock until after such time as combined financial results (including
combined sales and net
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income) covering at least 30 days of combined operations of X.X. Xxxxx and
Parent have been published by Parent, in the form of a quarterly earnings
report, an effective registration statement filed with the SEC, a report to the
SEC on Form 10-K, 10-Q or 8-K, or any other public filing or announcement which
includes such combined results of operations.
(c) The Stockholder will deliver to Parent at Parent's request (i) a
written representation confirming, as of immediately prior to the Effective
Time, the accuracy of the representations and warranties contained in Section 4,
and (ii) such additional written representations as may be reasonably requested
by Dechert Price & Xxxxxx or Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP.
(d) The Stockholder will not take any action that would jeopardize
qualification of the Merger as a reorganization within the meaning of Section
368 of the Code.
(e) The Stockholder will execute the Company Affiliate Agreement promptly
upon request therefor, which letter shall be in the form attached as an exhibit
to the Merger Agreement.
(f) Immediately prior to the Effective Time, the Stockholder shall
exercise any and all Company Warrants held or controlled by the Stockholder.
4. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Parent and Merger Sub that:
(a) (i) The Shares listed on Annex A opposite the Stockholder's name are
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the only shares of X.X. Xxxxx capital stock, securities convertible into X.X.
Xxxxx capital stock, or other rights in respect of X.X. Xxxxx capital stock
(collectively, "X.X. Xxxxx Securities") owned of record or beneficially by the
Stockholder or in which the Stockholder has any interest; (ii) such Shares are
now and at all times during the term of this Agreement will be owned by the
Stockholder, free and clear of all liens, claim, charges and encumbrances of any
kind whatsoever except for liens, claims or charges arising from margin loans
from a bank or brokerage firm and except as contemplated by this Agreement, and
none of such Shares is subject to any voting trust or other agreement or
arrangement (except as created by this Agreement) with respect to the voting of
such Shares; and (iii) the Stockholder does not presently own any options to
purchase or rights to subscribe for or otherwise acquire any other shares of
X.X. Xxxxx Common Stock except as set forth in Annex A.
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(b) The Stockholder has full right, power and authority to execute and
deliver this Agreement and to perform all of such Stockholders' obligations
hereunder, and such execution, delivery and performance have been duly
authorized by all requisite action of the Stockholder and no other legal
proceedings are necessary therefor.
(c) This Agreement has been duly and validly executed and delivered by the
Stockholder and represents a valid and legally binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms.
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(d) Except as noted on Annex A, the execution, delivery and performance of
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this Agreement by the Stockholder will not constitute a violation of, conflict
with or result in a default under (i) any contract, understanding or arrangement
to which the Stockholder is a party or by which the Stockholder is bound or
require the consent of any other person or any party pursuant thereto, (ii) any
judgment, decree or order applicable to the Stockholder, or (iii) any applicable
law, statute, rule or regulation.
(e) The Company's indebtedness to Stockholder under the Note Purchase
Agreement dated October 3, 1997 outstanding on the date hereof is $12,000,000,
plus accrued interest thereon and professional cost incurred.
5. Representations, Warranties and Covenants of Parent and Merger Sub.
(a) Parent and Merger Sub hereby represent and warrant to the Stockholder that
(i) Parent and Merger Sub each have full corporate right, power and authority to
execute and deliver this Agreement and to perform its obligations hereunder,
(ii) such execution, delivery and performance have been duly authorized by all
requisite corporate action by Parent and Merger Sub, and no other corporate
proceedings are necessary therefor, (iii) this Agreement has been duly and
validly executed and delivered by Parent and Merger Sub and represents a valid
and legally binding obligation of Parent and Merger Sub, enforceable against
Parent and Merger Sub in accordance with its terms; and (iv) the execution,
delivery and performance of this Agreement by Parent and Merger Sub will not
constitute a violation of, conflict with or result in a default under (A) any
contract, understanding or arrangement to which either Parent or Merger Sub is a
party or by which either is bound or require the consent of any other person or
any party pursuant thereto, (B) any judgment, decree or order applicable to
Parent or Merger Sub, or (C) any applicable law, statute, rule or regulation.
(b) At the Effective Time, parent shall pay or cause to be paid all of the
Company's indebtedness to Stockholder under the Note Purchase Agreement dated
October 3, 1997.Termination. (a) This Agreement, other than the obligations set
forth in Sections 3(b), 3(d), 3(e), 3(f), 6 and 8, shall terminate at the
Effective Time.
(b) This Agreement shall terminate six (6) months after termination of the
Merger Agreement pursuant to its terms.
7. Severability. Any term, provision, covenant or restriction contained
in this Agreement held by a court or other Governmental Entity 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
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 Agreement that is so found to be so broad as to be
unenforceable shall be interpreted to be as broad as is enforceable.
8. Expenses. The Company shall pay all costs and expenses incurred by
such person or on such person's behalf in connection with the transactions
contemplated hereunder, including
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fees and expenses of such person's own financial consultants, investment
bankers, accountants and counsel, except as otherwise provided herein.
9. Entire Agreement. This Agreement (including the documents and the
instruments referred to therein) constitutes the entire agreement between the
parties and supersedes 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.
10. Successors; No Third Party Beneficiaries. The terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and assigns. Nothing in this 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 Agreement,
except as expressly provided herein.
11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or dispatched by a nationally recognized overnight courier service to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(i) if to Parent or Merger Sub, to
AmeriSource Health Corporation
000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: President
Facsimile No.: (000) 000-0000
with a copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esquire
Facsimile No.: (000) 000-0000
(ii) if to the Stockholder,
to the address set forth opposite his
name on Annex A.
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with a copy to
Xxxxxxxx & Xxxxxx P.L.L.P
0000 XXX Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. XxXxxx, Esq.
Facsimile No: (000) 000-0000
12. Counterparts. This Agreement may be executed in counterparts, and each
such counterpart shall be deemed to be an original instrument, but both such
counterparts together shall constitute but one agreement.
13. Specific Performance. The parties hereto agree that if for any reason
Parent or the Stockholder shall have failed to perform their obligations under
this Agreement, then the party hereto seeking to enforce this 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 any party hereto may have against
any other party hereto for any failure to perform its obligations under this
Agreement.
14. Governing Law. This Agreement shall be governed by the laws of the
State of Missouri, without giving effect to the conflict of laws principles
thereof.
15. Waiver and Amendment. Any provision of this Agreement may be waived at
any time by the party that is entitled to the benefits of such provision. This
Agreement may not be modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by the parties hereto.
16. Additional Shares. Notwithstanding the provisions of Section 15, in
the event that the Stockholder acquires any additional X.X. Xxxxx Securities,
such securities shall, without further action of the parties, be subject to the
provisions of this Agreement, and Annex A will be deemed amended accordingly. If
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the Stockholder acquires additional X.X. Xxxxx Securities, such Stockholder
shall promptly notify Parent in writing of such acquisition.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
AMERISOURCE HEALTH
CORPORATION
By:
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Name:
Title:
HAWK ACQUISITION CORP.
By:
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Name:
Title:
STOCKHOLDER:
XXXXXXXXX ESOP CAPITAL
PARTNERS, A MINNESOTA LIMITED
PARTNERSHIP
By: Xxxxxxxxx Capital Investment Partners, A
Minnesota Limited Partnership
Its: General Partner
By: Xxxxxxxxx Capital, Inc.
Its: General Partner
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A Principal
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ANNEX A
Securities (in number of shares)
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Common - Common - Common -
Direct By Warrant By ESOP
--------------- --------------- -------------
Record and Beneficial Owner
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Xxxxxxxxx ESOP Capital Partners,
A Minnesota Limited 24,260*
Partnership
0000 Xxxxxxxxxxxx Xxxxxx
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
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Total 24,260
* Subject to anti-dilution adjustments, if any, for events subsequent to
October 3, 1997 in accordance with the Warrant Agreement dated October 3, 1997.
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