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EXHIBIT 99.3
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:
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Title:
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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
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Stockholder Name Class Number of Shares Held
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