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EXHIBIT 5
VOTING AGREEMENT
THIS VOTING AGREEMENT, dated as of December 14, 1997 (this
"Agreement"), is made and entered into by and among Physician Sales & Service,
Inc., a Florida corporation ("PSS") and the other parties signatory hereto
(each a "Stockholder").
Preamble
The Stockholder is a stockholder of Gulf South Medical Supply, Inc.
("GSMS") 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 PSS to enter
into and execute, and to cause Merger Corp. 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 PSS
and Merger Corp. 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 PSS as follows:
(i) As of the date hereof, the Stockholder is the
record owner of the GSMS 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 GSMS
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 PSS and Merger Corp. are 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 PSS and Merger Corp.
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(b) PSS represents and warrants to Stockholder that this
Agreement has been duly authorized, executed and delivered by and
constitutes a valid and binding agreement of, PSS, 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 PSS is a party.
2. Voting Agreement.
(a) The Stockholder severally agrees with, and covenants
to, PSS that at any meeting of stockholders of GSMS called to vote
upon the Merger, the Merger Agreement, and any other matters related
thereto, or at any adjournment thereof or in any other circumstances
upon which a vote, consent or other approval with respect to the
Merger and the Merger Agreement is sought, the Stockholder shall vote
(or cause to be voted) the Stockholder's Shares in favor of 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 reduce
the Exchange Ratio payable in the Merger to a lesser 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 GSMS Common Stock, shall be
present in person or by proxy at all meetings of stockholders of GSMS
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 GSMS or exercising or observing
Stockholder's fiduciary duties and responsibilities as an officer or
director of GSMS.
3. Covenants. The Stockholder severally agrees with, and
covenants to, PSS as follows:
(a) Prior 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, Xxxxxxx X. Xxxxx, Chief Executive Officer of PSS, and Xxxxx
X. Xxxxx, Chief Financial Officer of PSS, in their respective
capacities as officers of PSS, and any individual who shall hereafter
succeed to any such office of PSS, 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 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 reduce the Exchange Ratio payable in
the Merger to a lesser amount of PSS Common Stock or otherwise to
adversely impair the
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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 GSMS, or the
acquisition of additional shares of GSMS Common Stock or other voting
securities of GSMS 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 GSMS Common
Stock or other voting securities of GSMS issued to or acquired by the
Stockholder.
6. Further Assurances. The Stockholder shall, upon request of
PSS, execute and deliver any additional documents and take such further actions
as may reasonably be deemed by PSS 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 PSS and the other irrevocable proxies described
therein at the expense of PSS.
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 PSS 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 PSS 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.
PHYSICIAN SALES & SERVICE, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: President
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"STOCKHOLDER"
/s/ Xxxxxx X. Xxxxx
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/s/ Xxxx X. Xxxxx, Xx.
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/s/ Xxxxxx X. Xxxxxxxxxx
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/s/ Xxxxxx Xxxxx Xxxxxxxxx
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/s/ Xxxxxx Xxxxxxx
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/s/ Xxxxx X. Xxxxxx
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/s/ Xxxxxxx X. XxXxxxx
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/s/ Xxxxxx X. Xxxxxxxx
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/s/ Xxx X. Xxxxxxx
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/s/ Xxxxx Xxxxxxxxxx
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SCHEDULE 1
Stockholder Name Class Number of Shares Held
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