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Exhibit 3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of March 30, 1998, between
Omnicare, Inc. a Delaware corporation ("Omnicare"), and the persons listed on
Schedule A hereto (collectively, the "Securityholders").
WHEREAS, Omnicare and IBAH, Inc., a Delaware corporation (the
"Company"), propose to enter into an Agreement and Plan of Merger, dated the
date hereof (as the same may be amended or supplemented, the "Merger Agreement")
providing for the merger of a subsidiary of Omnicare with the Company (the
"Merger");
WHEREAS, each Securityholder is the record and beneficial owner of the
number of (i) shares of common stock, par value $.01 per share, of the Company
(the "Common Shares"), (ii) shares of preferred stock, par value $.01 per share,
of the Company (the "Preferred Shares") or (iii) warrants to purchase Common
Shares (the "Warrants") set forth opposite such Securityholder's name on
Schedule A hereto; such securities, as they may be adjusted by stock dividend,
stock split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by the
Company, together with securities that may be acquired after the date hereof by
such Securityholder, including Common Shares issuable upon the exercise of
options to purchase Common Shares (as the same may be adjusted as aforesaid),
being collectively referred to herein as the "Securities"; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Omnicare has requested that the Securityholders enter into this
Agreement (capitalized terms not otherwise defined herein shall have the
meanings set forth in the Merger Agreement);
NOW, THEREFORE, to induce Omnicare to enter into, and in consideration
of it entering into, the Merger Agreement, and in consideration of the premises
and the representations, warranties and agreements contained herein, the parties
agree as follows:
1. Covenants of the Securityholders. Each Securityholder, severally and
not jointly, agrees as follows:
(a) The Securityholder shall not, except as contemplated by the terms
of this Agreement, (i) sell, transfer, pledge, assign or otherwise dispose of,
or enter into any Contract (as defined below), option or other arrangement
(including any profit sharing arrangement) or understanding with respect to the
sale, transfer, pledge, assignment or other disposition of, the Securities to
any person other than Omnicare or Omnicare's designee, (ii) enter into any
voting arrangement, whether by proxy, voting agreement, voting trust,
power-of-attorney or otherwise, with respect to the Securities 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; provided, however,
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that any Securityholder that is an individual may transfer all or any part of
his or her Securities to any sibling or any other member of his or her immediate
family, any of his or her lineal descendants or any trust for the benefit of any
of them, if the recipient of the Securities agrees in advance in writing
delivered to Omnicare to be bound by this Agreement; provided, further, however
that Vector Later-Stage Equity Fund, L.P. may exercise any of its Warrants and
sell the underlying Common Stock at any time prior to 30 days preceding the
Effective Date of the Merger (as such term is defined in the Merger Agreement).
(b) Until the Merger is consummated or the Merger Agreement is
terminated, the Securityholder shall not, nor shall the Securityholder permit
any investment banker, financial adviser, attorney, accountant or other
representative or agent of the Securityholder to, directly or indirectly (i)
solicit, initiate or encourage (including by way of furnishing information), or
take any other action designed or reasonably likely to facilitate, any inquiries
or the making of any proposal which constitutes, or may reasonably be expected
to lead to, any Acquisition Proposal (as defined in the Merger Agreement) or
(ii) participate in any discussions or negotiations regarding any Acquisition
Proposal. Without limiting the foregoing, it is understood that any violation of
the restrictions set forth in the preceding sentence by an investment banker,
financial advisor, attorney, accountant or other representative or agent of the
Securityholder shall be deemed to be a violation of this Section 1(b) by the
Securityholder.
(c) At any meeting of Securityholders 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,
each Securityholder shall, including by initiating a written consent
solicitation if requested by Omnicare, vote (or cause to be voted) such
Securityholder's Securities in favor of the Merger, the adoption of the Merger
Agreement and the approval of the other transactions contemplated by the Merger
Agreement. At any meeting of Securityholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Securityholder's vote, consent or other approval is sought, such Securityholder
shall vote (or cause to be voted) such Securityholder's Securities 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
any other Acquisition Proposal (collectively, "Alternative Transactions") or
(ii) any amendment of the Company's Certificate 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 including any consent to
the treatment of any Securities in or in connection with such transaction
(collectively, "Frustrating Transactions"). The Securityholder hereby consents
to the transactions contemplated by Section 2.8 of the Merger Agreement.
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2. Grant of Irrevocable Proxy Coupled with an Interest; Appointment of
Proxy.
(a) Each Securityholder hereby irrevocably grants to, and appoints, any
individual who shall be designated by Omnicare, and each of them, such
Securityholder's proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of such Securityholder, to vote such
Securityholder's Securities, or grant a consent or approval in respect of such
Securities, at any meeting of Securityholders 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) Each Securityholder represents that any proxies heretofore given in
respect of such Securityholder's Securities are not irrevocable, and that any
such proxies are hereby revoked.
(c) EACH SECURITYHOLDER 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. Such Securityholder 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 Securityholder under this
Agreement. Such Securityholder 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 212 of the DGCL. Such irrevocable proxy shall be valid
until the later to occur of (i) one year from the date hereof or (ii) the
termination of this Agreement in accordance with its terms.
3. Representations and Warranties of the Securityholders. Each
Securityholder hereby, severally and not jointly, represents and warrants to
Omnicare as follows:
(a) Authority. The Securityholder has all requisite power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Securityholder. This Agreement has been duly executed and
delivered by the Securityholder and, assuming this Agreement constitutes a valid
and binding obligation of Omnicare, constitutes a valid and binding obligation
of the Securityholders enforceable against the Securityholder in accordance with
its terms. Except for the informational filings with the Securities and Exchange
Commission, neither the execution, delivery or performance of this Agreement by
the Securityholder nor the consummation by the Securityholder of the
transactions contemplated hereby will (i) require any filing with, or permit,
authorization, consent or approval of, any federal, state, local or municipal
foreign or other government or subdivision, branch, department or agency thereof
or any governmental or quasi-governmental authority of any nature, including any
court or other tribunal, (a
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"Governmental Entity"), (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default under, or give
rise to any right of termination, amendment, cancellation or acceleration under,
or result in the creation of any Lien upon any of the properties or assets of
the Securityholder under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, lease, license, permit, concession, franchise,
contract, agreement or other instrument or obligation (a "Contract") to which
the Securityholder is a party or by which the Securityholder or any of the
Securityholder's properties or assets, including the Securityholder's
Securities, may be bound or (iii) violate any judgment, order, writ, preliminary
or permanent injunction or decree (an "Order") or any statute, law, ordinance,
rule or regulation of any Governmental Entity (a "Law") applicable to the
Securityholder or any of the Securityholder's properties or assets, including
the Securityholder's Securities.
(b) The Securities. The Securityholder's Securities and the
certificates representing such Securities are now, and at all times during the
term hereof will be, held by such Securityholder, or by a nominee or custodian
for the benefit of such Securityholder, and the Securityholder has good and
marketable title to such Securities, free and clear of any Liens, proxies,
voting trusts or agreements, understandings or arrangements, except for any such
Liens or proxies arising hereunder. The Securityholder owns of record or
beneficially no securities of the Company, or any options, warrants or rights
exercisable for securities of the Company, other than such Securityholder's
Securities and shares of Company Common Stock issuable upon the exercise of
Existing Options (as defined in the Merger Agreement), in each case as set forth
on Schedule A hereto.
(c) Brokers. No broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial advisor's or other
similar fee or commission in connection with the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of such
Securityholder.
(d) Merger Agreement. The Securityholder understands and acknowledges
that Omnicare is entering into, the Merger Agreement in reliance upon the
Securityholder's execution and delivery of this Agreement.
4. Board Approval. The Board of Directors of the Company has 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, Section 203 of the DGCL) or restrictive provision of any
applicable anti-takeover provision in the Articles of Incorporation or by-laws
of the Company is, or at the closing of the transactions contemplated hereby
will be, applicable to the Company, Omnicare, the Securities, the Merger or any
other transaction contemplated by this Agreement.
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5. Representations and Warranties of Omnicare. Omnicare hereby
represents and warrants to the Securityholders as follows:
(a) Authority. Omnicare has the requisite corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
by Omnicare and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of Omnicare.
This Agreement has been duly executed and delivered by Omnicare and, assuming
this Agreement constitutes a valid and binding obligation of the
Securityholders, constitutes a valid and binding obligation of Omnicare
enforceable in accordance with its terms.
(b) Securities Act. The Securities will be acquired in compliance with,
and Omnicare will not offer to sell or otherwise dispose of any Securities so
acquired by it in violation of any of, the Securities Exchange Act of 1934, or
the registration requirements of the Securities Act of 1933.
6. Further Assurances. Each Securityholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
Omnicare may reasonably request for the purpose of effectively carrying out the
transactions contemplated by this Agreement and to vest the power to vote such
Securityholder's Securities as contemplated by Section 2. Omnicare agrees to use
reasonable efforts to take, or cause to be taken, all actions necessary to
comply promptly with all legal requirements that may be imposed with respect to
the transactions contemplated by this Agreement.
7. Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective heirs, successors, executors, administrators and
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
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8. Termination. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the first anniversary of the date of any
termination of the Merger Agreement in accordance with its terms. Nothing in
this Section 8 shall relieve any party from liability for willful breach of this
Agreement.
9. Stop Transfer. The Company agrees with, and covenants to, Omnicare
that the Company shall not register the transfer of any certificate representing
any Securityholder's Securities unless such transfer is made in accordance with
the terms of this Agreement.
10. General Provisions.
(a) Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expense.
(b) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(c) Notice. All notices and other communications hereunder shall be in
writing and shall be deemed given upon receipt 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 Omnicare, to
Facsimile:
with a copy to:
Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxx
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
and
(ii) if to a Securityholder, to the address set forth under the name of such
Securityholder on Schedule A hereto
with a copy to:
Xxxxxx X. Xxxxxxxxx
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
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Facsimile: (000) 000-0000
(d) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Wherever the words "include", "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
(e) 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.
(f) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i) 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
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder.
(g) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware without regard to any
applicable conflicts of law.
(h) Publicity. Except as otherwise required by law, court process or
the rules of a national securities exchange or the Nasdaq National Market or as
contemplated or provided in the Merger Agreement, for so long as this Agreement
is in effect, neither any Securityholder nor Omnicare shall issue or cause the
publication of any press release or other public announcement with respect to
the transactions contemplated by this Agreement or the Merger Agreement without
the consent of the other parties, which consent shall not be unreasonably
withheld.
11. Securityholder Capacity. No person executing this Agreement who is
or becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer. Each Securityholder signs solely in his or her capacity as the record
holder and beneficial owner of, or the trustee of a trust whose beneficiaries
are the beneficial owners of, such Securityholder's Securities and nothing
herein shall limit or affect any actions taken by a Securityholder in its
capacity as an officer or director of the Company to the extent specifically
permitted by the Merger Agreement.
12. 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
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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.
EACH SECURITYHOLDER AGREES THAT, IN CONNECTION WITH ANY LEGAL SUIT OR PROCEEDING
ARISING WITH RESPECT TO THIS AGREEMENT, IT SHALL SUBMIT TO THE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE AND AGREES TO
VENUE IN SUCH COURTS. EACH SECURITYHOLDER HEREBY APPOINTS THE SECRETARY OF THE
COMPANY AS ITS AGENT FOR SERVICE OF PROCESS FOR PURPOSES OF THE FOREGOING
SENTENCE ONLY. EACH PARTY HERETO WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION
WITH ANY SUCH SUIT OR PROCEEDING.
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IN WITNESS WHEREOF, Omnicare has caused this Agreement to be signed
by its officer thereunto duly authorized and each Securityholder has signed this
Agreement, all as of the date first written above.
OMNICARE, INC.
By: /s/ XXXXX X. XXXXXXX, XX.
------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
SECURITYHOLDER
By: /s/ XXXXXXX X. XXXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx,
Individual
Xxxxxxxxx Foundation
CIP Capital, L.P.
SECURITYHOLDER
By: /s/ XXXXXX XXXXXX, PH.D.
------------------------------------
Name: Xxxxxx Xxxxxx, Ph.D.
SECURITYHOLDER
By: /s/ XXXXXX XXXXX, PH.D.
------------------------------------
Name: Xxxxxx Xxxxx, Ph.D.,
Individual
Vector Later-Stage Equity
Fund, L.P.
SECURITYHOLDER
By: /s/ XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
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SECURITYHOLDER
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------
Name: CIP Capital, L.P.
SECURITYHOLDER
By: /s/ XXXXXX X. XXXXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx,
Trustee for the
Son of Xxxxxxx X. Xxxxxxxxx
SECURITYHOLDER
By: /s/ XXXXXXXXX X. XXXXXXX
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Name: Xxxxxxxxx X. Xxxxxxx
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SCHEDULE A
[need addresses]
Common Preferred
Name and Address Shares Shares Warrants Options
---------------- ------ ------ -------- -------
Xxxxxxx X. Xxxxxxxxx(1) 1,277,917 106,000
Trust for Son of Xxxxxxx X.
Xxxxxxxxx 159,750
Xxxxxxxxx Foundation 171,000
Xxxxxxxxx X. Xxxxxxx 2,670,058 92,500
Xxxxxx X. Xxxxxxx 378,055
Vector Later-Stage Equity
Fund 356,984 1,070,952
Xxxxxx Xxxxx, Ph.D. 20,000
Xxxxxx Xxxxxx, Ph.D. 540,399 23,760
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(1) Includes 673, 371 Common Shares owned by CIP Capital, L.P.
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