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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(AMENDMENT NO. 5)
PHARMERICA, INC.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
717135-10-7
(CUSIP Number)
ALLAN C. SILBER
COUNSEL CORPORATION
THE EXCHANGE TOWER
130 KING STREET WEST, SUITE 1300
TORONTO, ONTARIO, CANADA M5X 1E3
(416) 866-3000
(Name, Address and Telephone Number of
Person Authorized to Receive Notice and Communications)
NOVEMBER 8, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13D-1(b)(3) or (4), check the following box
[ ].
Check the following box if a fee is being paid with this statement [ ].
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page. The information required on
the remainder of this cover page shall not be deemed to be "filed" for the
purpose of Section 18 of the Securities Exchange Act of 1934 ("Exchange Act") or
otherwise subject to the liabilities of that section of the Act but shall be
subject to all other provisions of the Act (however, see the Notes).
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CUSIP NO. 717135-10-7 13D PAGE 2 OF 11 PAGES
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(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
COUNSEL CORPORATION
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS *
NA (SEE ITEM 3)
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or (e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
ONTARIO, CANADA
NUMBER OF SHARES (7) SOLE VOTING POWER
0 (SEE ITEM 5)
BENEFICIALLY (8) SHARED VOTING POWER
7,819,315 (SEE ITEM 5)
OWNED BY EACH (9) SOLE DISPOSITIVE POWER
0 (SEE ITEM 5)
REPORTING PERSON (10) SHARED DISPOSITIVE POWER
7,819,315 (SEE ITEM 5)
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,819,315 SHARES OF COMMON STOCK (SEE ITEM 5)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [X]
COUNSEL CORPORATION DISCLAIMS BENEFICIAL OWNERSHIP OF MR. SILBER'S
HOLDINGS, AS DISCUSSED IN ITEM 5.
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.7% (See Item 5)
(14) TYPE OF REPORTING PERSON *
CO
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CUSIP NO. 14066N-10-1 13D PAGE 3 OF 11 PAGES
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<S> <C>
(1) NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ALLAN C. SILBER
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
(3) SEC USE ONLY
(4) SOURCE OF FUNDS *
NA (SEE ITEM 3)
(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) or (e) [ ]
(6) CITIZENSHIP OR PLACE OF ORGANIZATION
TORONTO, ONTARIO, CANADA
NUMBER OF SHARES (7) SOLE VOTING POWER
567,500 (SEE ITEM 5)
BENEFICIALLY (8) SHARED VOTING POWER
0 (SEE ITEM 5)
OWNED BY EACH (9) SOLE DISPOSITIVE POWER
557,500 (SEE ITEM 5)
REPORTING PERSON (10) SHARED DISPOSITIVE POWER
0 (SEE ITEM 5)
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
567,500 (SEE ITEM 5)
(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [X]
MR. SILBER DISCLAIMS BENEFICIAL OWNERSHIP OF COUNSEL CORPORATION'S HOLDINGS,
AS DISCUSSED IN ITEM 5
(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.6% (SEE ITEM 5)
(14) TYPE OF REPORTING PERSON *
IN
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3
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AMENDMENT NUMBER 5 SCHEDULE 13D
INTRODUCTION
This statement (the "Fifth Amendment") is amendment number 5 to an
initial statement on Schedule 13D as amended and restated in an Amendment dated
May 22, 1995 (the "First Amendment"), as again amended and restated in a Second
Amendment dated August 29, 1995 (the "Second Amendment"), as again amended and
restated in a Third Amendment dated July 29, 1996 (the "Third Amendment"), and
as again amended and restated in a Fourth Amendment dated December 2, 1997 (the
Fourth Amendment) (the Fifth Amendment, Fourth Amendment, Third Amendment,
Second Amendment, First Amendment and the initial statement being herein
referred to as the "Schedule 13D"), with respect to the common stock of
PharMerica, Inc., f/k/a Capstone Pharmacy Services, Inc. (the "Issuer" or
"PharMerica"). The reporting persons named below are hereby jointly filing this
statement on Schedule 13D, pursuant to Rule 13d-1(f)(1) promulgated by the
Securities and Exchange Commission pursuant to the Exchange Act. This Fifth
Amendment amends Items 2, 5, 6, and 7.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 is amended and supplemented as follows:
Information as to the identity and background of the directors and
executive officers of Counsel Corporation ("Counsel") is set forth in Appendix A
attached hereto, which is incorporated herein by reference.
Neither Counsel nor, to the best knowledge of Counsel, any of the
directors, executive officers or controlling persons of Counsel during the last
five years, (a) has been convicted in any criminal proceeding (excluding traffic
violations or similar misdemeanors) or (b) has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and,
as a result of such proceeding, was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activity
subject to, federal or state securities laws or finding any violations with
respect to such laws.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is deleted in its entirety and replaced and supplemented by the
following:
(a) As of the close of business on November 8, 1998, (i) Counsel
beneficially owns in the aggregate 7,819,315 shares of the
Issuer's common stock and disclaims beneficial ownership of
all shares held by Mr. Silber, and (ii) Mr. Silber
beneficially owns in the aggregate 567,500 shares of the
Issuer's common stock and disclaims beneficial ownership of
all shares held
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by Counsel. Counsel's and Mr. Silber's ownership constitute
8.7% and 0.6%, respectively, of the outstanding shares of the
Issuer's common stock, based upon 89,387,126 shares
outstanding as of November 2, 1998 (represented by Issuer's
quarterly report on Form 10-Q as the number of shares of the
Issuer's common stock outstanding as of such date) plus, with
respect to each party, the number of shares subject to options
or warrants held by such party.
Counsel has direct beneficial ownership of 7,819,315 shares of
the Issuer's common stock.
Mr. Silber has direct beneficial ownership of 95,000 shares of
the Issuer's common stock and options to acquire an additional
810,000 shares, of which 472,500 are vested.
Mr. Silber is a director of Counsel and a shareholder who
beneficially owns or controls approximately 17% of the common
shares of Counsel, a majority of which is pledged to a lender.
Each of Counsel and Mr. Silber disclaims beneficial ownership
of the shares of the Issuer beneficially owned by the other.
(b) Mr. Silber has the sole power to direct the vote and
disposition of the shares of which he possesses beneficial
ownership. Counsel shares its voting power and
disposition rights, as more fully set forth in Item 6, with
Bergen Brunswig Corporation ("Bergen"), a New Jersey
corporation and national drug wholesaler and distributor whose
principal office is 4000 Metropolitan Drive, Orange,
California 92868-3598. To the best knowledge of Counsel,
Bergen has not, during the last five years, (a) been convicted
in any criminal proceeding (excluding traffic violations or
similar misdemeanors) or (b) been a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and, as a result of such proceeding, was or is
subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activity subject
to, federal or state securities laws or finding any violations
with respect to such laws. The responses of Counsel
Corporation and Mr. Silber to Items (7) through (11) of the
portions of the cover page of this Schedule 13D that relate to
beneficial ownership are incorporated herein by reference.
(c) The following transaction was effected by the reporting person
since in the last 60 days:
See Item 6.
(d) Not Applicable.
(e) Not Applicable.
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ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDING OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
On November 8, 1998, Counsel entered into a stock purchase agreement
(the "Agreement") between Counsel, Stadt Holdings Inc., a Delaware corporation
and an indirect wholly-owned subsidiary of Counsel ("Stadt"), Stadtlander Drug
Co., Inc. , a Delaware corporation and an indirect wholly-owned subsidiary of
Counsel ("Stadtlander"), and Bergen, whereby Bergen agreed to purchase all of
the issued and outstanding capital stock of Stadtlander for an estimated
purchase price of approximately $400,000,000 (consisting of cash, stock and
payment of debt) along with certain voting rights and disposition powers with
respect to the shares of PharMerica held by Counsel.
Counsel has direct beneficial ownership of 7,819,315 shares of the
Issuer's common stock (the "PharMerica Shares"). Counsel has agreed to transfer
to Bergen, for a limited period of time and under limited circumstances, the
right to vote all of the PharMerica Shares on issues relating to any "business
combination" involving PharMerica. The term "business combination" refers to,
among other things, a merger, consolidation, share exchange, sale, transfer, or
other similar transaction. The voting rights granted to Bergen in respect of the
PharMerica Shares will terminate on December 31, 2001. In addition, Counsel has
covenanted that it will not sell, distribute to its shareholders or otherwise
dispose of any of the PharMerica Shares prior to December 31, 1999 (or December
25, 1999 in the case of a distribution to Counsel's shareholders) without the
prior written consent of Bergen. Bergen has also been granted a right of first
refusal to purchase all the PharMerica Shares in the event that Counsel receives
a bona fide offer from a third-party for such shares. If, following notice of
such third-party offer, Bergen declines to purchase the PharMerica Shares,
Counsel will be free to sell such shares to the third-party. Notwithstanding the
foregoing, if the sale to the third-party is not consummated within 120 days
from the date Bergen was notified of the offer, the Corporation must resubmit
the offer to Bergen for further consideration. In addition to and to effectuate
the rights created through the Agreement, at closing of the transaction, Counsel
will grant to Bergen an irrevocable proxy, a back-up option agreement and
certain rights pursuant to a voting trust agreement.
The foregoing description of the voting rights and disposition powers
transferred by Counsel are qualified in their entirety by reference to the
Agreement, the irrevocable proxy, the back-up option agreement and the voting
trust agreement, copies of which are attached hereto as Exhibits 2.1, 2.2, 2.3
and 2.4 and incorporated by reference herein.
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Item 7. Materials to be Filed as Exhibits
1. Stock Purchase Agreement among Stadtlander, Counsel, Stadt
and Bergen dated November 8, 1998.
2. Form of Irrevocable Proxy among Counsel, Stadt and Bergen.
3. Form of Back-Up Option Agreement among Counsel, Stadt and
Bergen.
4. Form of Voting Trust Agreement among Counsel, Counsel
Healthcare Assets, Inc, and Bergen.
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SIGNATURES
After reasonable inquiry and to the best knowledge and belief of each
of the undersigned, the undersigned certify that the information set forth in
this statement is true, complete and correct.
Date: November 18, 1998
COUNSEL CORPORATION
By: /s/ Allan C. Silber
----------------------------------
Allan C. Silber
Chairman of the Board and
Chief Executive Officer
/s/ Allan C. Silber
-------------------------------------
Allan C. Silber, Individually
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Exhibit Index
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<CAPTION>
Exhibit No.
<S> <C>
2.1 Stock Purchase Agreement among Stadtlander, Counsel, Stadt
and Bergen dated November 8, 1998.
2.2 Form of Irrevocable Proxy among Counsel, Stadt and Bergen.
2.3 Form of Back-Up Option Agreement among Counsel, Stadt
and Bergen.
2.4 Form of Voting Trust Agreement among Counsel, Counsel
Healthcare Assets, Inc, and Bergen.
</TABLE>
9
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SCHEDULE A
TO SCHEDULE 13D
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<CAPTION>
Board of Directors of Counsel Corporation:
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Name Address
---------- ----------
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Norman Hill Suite 300,
President 250 Sheppard Avenue East
Norman Hill Realty Inc. Toronto, ON M2N 3A9
Ajit Hutheesing 300 First Stamford Place
Chairman & Managing Partner Stamford, CT 06902
International Capital Partners Inc.
Morris Perlis Exchange Tower
President Suite 1300,
Counsel Corporation 130 King Street West
Toronto, ON M5X 1E3
Philip Reichmann Suite 2700,
President 40 King Street West
O & Y Properties Corporation Toronto, ON M5H 3Y2
Allan C. Silber Exchange Tower
Chairman & C.E.O. Suite 1300,
Counsel Corporation 130 King Street West
Toronto, ON M5X 1E3
Edward Sonshine, Q.C. Exchange Tower
Vice-Chairman Suite 1300,
Counsel Corporation 130 King Street West
Toronto, ON M5X 1E3
Gerald Turner Administration
President Emeritus 600 University Avenue
Mt. Sinai Hospital Suite 338
Toronto, ON M5G 1X5
Edward J Waitzer Commerce Court West
Partner P.O. Box 85
Stikeman, Elliott Barristers Suite 5300
and Solicitors Toronto, ON M5L 1B9
</TABLE>
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<TABLE>
<CAPTION>
Executive Officers of Counsel Corporation:
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Name Address
---------- ----------
<S> <C>
Allan C. Silber Exchange Tower
Chairman of the Board and Chief Suite 1300,
Executive Officer 130 King Street West
Toronto, ON M5X 1E3
Edward Sonshine, Q.C. Exchange Tower
Vice-Chairman Suite 1300,
130 King Street West
Toronto, ON M5X 1E3
Morris Perlis Exchange Tower
President Suite 1300,
130 King Street West
Toronto, ON M5X 1E3
Stephen Weintraub Exchange Tower
Senior Vice President and Suite 1300,
Secretary 130 King Street West
Toronto, ON M5X 1E3
Susan Feldman Exchange Tower
Senior Vice President, Suite 1300,
Corporate Communications 130 King Street West
Toronto, ON M5X 1E3
Howard Wortzman Exchange Tower
Vice President, Suite 1300,
Financial Reporting 130 King Street West
Toronto, ON M5X 1E3
</TABLE>
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EXECUTION COPY
EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as of November 8, 1998, is by and
among STADTLANDER DRUG CO., INC., a Pennsylvania corporation having its
principal place of business at 700 Penn Center Boulevard, Pittsburgh,
Pennsylvania 15235(the "Company"), COUNSEL CORPORATION, an Ontario corporation
having its principal place of business at Exchange Tower, 130 King Street West,
Suite 1300, Toronto, Ontario M5X 1E3 (the "Canadian Seller"), STADT HOLDINGS
INC., a Delaware corporation having its principal place of business at 280 Park
Avenue, West Building, 28th Floor, New York, New York 10017 (the "US Seller"),
and BERGEN BRUNSWIG CORPORATION, a New Jersey corporation having its principal
place of business at 4000 Metropolitan Drive, Orange, California 92668 ("BBC" or
the "Purchaser").
RECITALS
1. The Canadian Seller is the legal and beneficial owner of fourteen
percent (14%) of the issued and outstanding capital stock of the Company. The US
Seller is the legal and beneficial owner of eighty six percent (86%) of the
issued and outstanding capital stock of the Company. The US Seller is an
indirect wholly-owned subsidiary of the Canadian Seller.
2. The Canadian Seller and the US Seller (collectively, the "Sellers")
desire to sell and transfer to the Purchaser, and the Purchaser desires to
purchase from the Sellers, all of the outstanding shares of capital stock of the
Company, all as more specifically provided herein.
3. The Canadian Seller and its subsidiaries are also the legal and
beneficial owners of 7,819,315 shares of the common stock, par value $.01 per
share, of PharMerica (the "PharMerica Shares").
4. The Purchaser desires to obtain certain rights with respect to the
PharMerica Shares, and the Canadian Seller is willing to confer such rights upon
the Purchaser, all as more specifically provided herein.
5. The Company would benefit substantially from being directly
affiliated with the Purchaser. The Company purchases a substantial amount of its
pharmaceutical supplies from the Purchaser. Furthermore, given the Purchaser's
access to capital and borrowing capacity, direct affiliation with the Purchaser
is expected to improve the Company's access to capital necessary for the
Company's continued growth.
6. The Boards of Directors (or Executive Committees of such Boards of
Directors) of each of the Canadian Seller, the US Seller, the Company and the
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Purchaser have determined that it is in the best interests of such entity to
enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions. As used in this Agreement, the
following terms have the respective meanings set forth below.
"Accountants" means Arthur Andersen & Co., L.L.P., the Company's
independent accountants.
"Action" means any administrative, judicial or other legal proceeding
before any Governmental Authority.
"Affiliate" means, with respect to any Person, any other Person who
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlled" and "controlling" have meanings correlative thereto.
"Agreement" means this Stock Purchase Agreement.
"Associate" has the meaning ascribed to such term in Rule 405
promulgated by the SEC pursuant to the Act.
"Back-up Option Agreement" means an option agreement relating to
PharMerica, given by the Canadian Seller to the Purchaser, dated the Closing
Date, in the form and substance of the option agreement annexed hereto as
Appendix 1.1.
"BBC Common Stock" means the Class A Common Stock, par value $1.50 per
share, of the Purchaser.
"Business Day" means a day on which national banks are open for
business in New York City.
"Certificate of Net Debt" means a certificate, executed by the chief
financial officer of the Canadian Seller and dated three (3) Business Days prior
to the Closing
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Date, setting forth (a) a statement by such officer as to such officer's good
faith estimate of the Net Debt as of the Closing Date and (b) back-up
documentation, in reasonable detail, evidencing such officer's calculation of
such Net Debt. "Certified Net Debt" means the aggregate amount of Net Debt set
forth in the Certificate of Net Debt.
"CEO Contract" means the employment agreement, made effective as of
July 6, 1998, by and between the Company and Michele J. Hooper.
"Claims" means any and all claims, demands, actions, causes of action
and legal proceedings.
"Companies" means the Company and each of the Subsidiaries.
"Competitive Business" means (a) a specialty mail order pharmaceutical
care delivery system business comparable to the specialty mail order
pharmaceutical care delivery system business as conducted by the Companies as of
the date hereof that is focused on one or more of the following specific disease
states: HIV/AIDS, organ transplantation, serious mental illnesses, and
infertility and (b) the business of delivering pharmaceutical products to
individuals incarcerated in corrections facilities pursuant to contracts with
commercial corrections management companies and governmental entities. Excluded
from the definition of "Competitive Business" are (w) any de minimis business of
the Companies not included within clauses (a) or (b) above, (x) the development
of pharmaceuticals for use primarily in the treatment of infertility, as
performed by Sage BioPharma, Inc., and the marketing of such pharmaceuticals so
developed, (y) the marketing and distribution of pharmaceuticals, as performed
by FARO Pharmaceuticals, Inc., and (z) all other activities not specifically
listed in clauses (a) or (b) above, including, but not limited to, specialty
mail order pharmaceutical care delivery systems and general mail order pharmacy
services that do not involve specialization in any of the above-mentioned
disease states; institutional pharmacy services; pharmacy management services;
home health care; the development of drug formularies; the development of "below
threshold" drugs; disease state management; treatment of hormone-dependent
ailments; and pharmaceutical sales and marketing.
"Code" means the Internal Revenue Code of 1986, as amended.
"CPA" means Deloitte & Touche LLP.
"Encumbrances" means security interests, liens, encumbrances, claims
and restrictions of any kind.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Final Net Debt" means the Net Debt as of the Closing Date, as set
forth in the Final Accounting Report.
"First Quarterly Period" means the period commencing on the Closing
Date and ending on the ninetieth (90th) calendar day after the Closing Date,
"Second Quarterly Period" means the period commencing on the ninety first (91st)
calendar day after the Closing Date and ending on the one hundred and eightieth
(180th) calendar day after the Closing Date, "Third Quarterly Period" means the
period commencing on the one hundred and eighty first (181st) calendar day after
the Closing Date and ending on the two hundred and seventieth (270th) calendar
day after the Closing Date, "Fourth Quarterly Period" means the period
commencing on the two hundred and seventy first (271st) calendar day after the
Closing Date and ending on the three hundred and sixtieth (360th) calendar day
after the Closing Date, "Fifth Quarterly Period" means the period commencing on
the three hundred and sixty first (361st) calendar day after the Closing Date
and ending on the four hundred and fiftieth (450th) calendar day after the
Closing Date and "Sixth Quarterly Period" means the period commencing on the
four hundred and fifty first (451st) calendar day after the Closing Date and
ending on the five hundred and fortieth (540th) calendar day after the Closing
Date.
"Forster Agreement" means the employment agreement, made as of
September 18, 1998, between the Company and William P. Forster.
"GAAP" means generally accepted accounting principles as in effect in
the United States on the date of this Agreement.
"Governmental Authority" means any national, federal, state,
provincial, county, municipal or local government, foreign or domestic, or the
government of any political subdivision of any of the foregoing, or any entity,
authority, agency, ministry or other similar body exercising executive,
legislative, judicial, regulatory or administrative authority or functions of or
pertaining to government, including any authority or other quasi-governmental
entity established to perform any of such functions.
"Gray Goods" means materials which have been purchased by the Companies
from a source other than the manufacturer or a distributor licensed to resell
the materials of such manufacturer.
"Limited Audit" means an audit performed in accordance with standard
auditing procedures as recognized by the American Institute of Certified Public
Accountants, subject to such modifications as shall be agreed upon in writing by
the Buyer and the Canadian Seller prior to the Closing.
"Limited Size Acquisition" means an acquisition for cash of a
substantial portion of the assets or the capital stock of a Person valued,
giving effect to assumed
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indebtedness, at not more than $1,000,000 per transaction and not more than
$3,000,000 in the aggregate.
"Market Value" means the lesser of (a) $49.625 and (b) the average of
the last sale prices, quoted regular way, of the BBC Common Stock on the New
York Stock Exchange on each of the last ten (10) consecutive trading days ending
on the third trading day prior to the Closing Date (such ten day period, the
"Market Price Period"); provided, however, that both such $49.625 amount and
such average shall be equitably adjusted hereunder as necessary to reflect the
Stock Split if, on the date that any determination of Market Value is made
hereunder, the last sale price, quoted regular way, of the BBC Common Stock
reflects the Stock Split.
"Material Adverse Change" means, with respect to a Person, a material
adverse change in the business, condition (financial or otherwise), properties,
assets, liabilities or results of operations of such Person and its
subsidiaries, taken as a whole. When evaluated in the context of any of the
Companies, the term "Material Adverse Change" shall take into account all of the
Companies taken as a whole. When evaluated in the context of the Purchaser, the
term "Material Adverse Change" shall take into account the Purchaser and all of
its subsidiaries taken as a whole.
"Net Worth" means the consolidated net worth of the Company and its
Subsidiaries, as determined as of a particular date in accordance with GAAP,
consistently applied, subject to Section 2.5.4.
"Net Debt" means, as of a particular date, (x) the aggregate amount of
indebtedness (principal, interest and premium, if any), including amounts
payable on capital leases, owed by the Company and its Subsidiaries (other than
indebtedness of Stadt Solutions LLC as to which none of the Companies, other
than Stadt Solutions LLC, is liable) to banks, other secured lenders, the
Canadian Seller or any Affiliate of the Canadian Seller (other than the Company
and its Subsidiaries) minus (y) the aggregate amount of cash held by the Company
and its Subsidiaries (other than Stadt Solutions LLC) in bank and other similar
accounts on such date.
"Ordinary Course of Business" means actions which are (a) consistent
with the past practices of the designated entity, (b) similar in nature and
style to actions customarily taken by the designated entity and (c) do not
require, and in the past have not received, specific authorization by the board
of directors of the designated entity.
"Outside Date" means March 31, 1999, subject to the operation of
Section 6.22.4,; provided, however, if the Canadian Sellers' Shareholders'
Meeting shall not have been held by March 31, 1999, "Outside Date" means May 31,
1999, subject to the operation of Section 6.22.4.
"PharMerica" means PharMerica, Inc., a Delaware corporation having its
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principal place of business at 3611 Queen Palm Drive, Tampa, Florida 33619.
"PharMerica Business Combination" means (a) any merger, consolidation,
share exchange, business combination or similar transaction involving PharMerica
(other than a transaction in which the shareholders of PharMerica will, after
such transaction, continue to own at least 50.1% of the shares of the successor
corporation and the members of the Board of Directors immediately preceding the
transaction will continue to represent at least a majority of the members of the
Board of Directors of the successor corporation), (b) any sale, lease or
transfer of substantially all of the assets of PharMerica, (c) any tender or
exchange offer made generally to the shareholders of PharMerica and (d) any
other transaction which, if consummated, would be required by the SEC to be
reported in response to Item 1 of the Current Report on Form 8-K.
"PharMerica Shares" has the meaning set forth in the Recitals.
"Person" means an individual, partnership, corporation, limited
liability company, joint stock company, unincorporated organization or
association, trust or joint venture, or a governmental agency or political
subdivision thereof.
"Proprietary Rights" means all of the (i) patents, inventions,
trademarks, service marks, industrial designs, trade names, trade styles, trade
dress, service names, logos, slogans, brand names, brand marks, computer
software, copyrights and the like (whether registered with federal, state or
other governments of any country or unregistered) and applications,
registrations, permits and licenses relating thereto and any reissues,
continuations, continuations-in-part and extensions thereof, (ii) computer
software and licenses related thereto and (iii) processes, methods, information,
data, plans, art works, blueprints, specifications, designs, drawings,
engineering reports, test reports, material standards, processing standards,
performance standards, know-how, formulas, trade secrets, concepts,
applications, procedures, marketing and technical data, customer and vendor
lists and other confidential information used in or otherwise necessary for the
conduct of the Businesses of the Companies.
"Proxy" means a letter agreement and a related irrevocable proxy
relating to PharMerica, given by the Canadian Seller and any subsidiary of the
Canadian Seller that owns PharMerica Shares as of the Closing Date, to the
Purchaser, dated the Closing Date, in the form and substance of the letter
agreement and proxy annexed hereto as Appendix 1.3.
"Qualified Investor" means an investor that is not reasonably regarded
by the Purchaser as a competitor with respect to one or more of the Company's
products or services.
"Regulated Substances" means pollutants, contaminants, hazardous or
toxic substances, compounds or related materials or chemicals, hazardous
materials,
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hazardous waste, flammable explosives, radon, radioactive materials, asbestos,
urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum and
petroleum products (including, but not limited to, waste petroleum and petroleum
products) as regulated under any applicable Environmental Law.
"Stadtlander Common Stock" means the Common Stock, no par value, of
the Company.
"Stock Split" means the two-for-one stock split announced by the Board
of Directors of the Purchaser on September 17, 1998 payable on December 1, 1998
to holders of record of BBC Common Stock on November 2, 1998.
"Subsidiaries" means, at any date, any Person (i) the accounts of which
would be consolidated with those of the Company in the Company's consolidated
financial statements if such financial statements were prepared in accordance
with GAAP as of such date, or (ii) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests or more than 50% of the profits or losses of which
are, as of such date, owned, controlled or held by the Company or one or more
subsidiaries of the Company. The term "Subsidiaries" shall include, with respect
to the Company, without limitation, the following entities: Stadtco Holdings,
Inc., Stadtlander Drug Distribution Co., Inc., Stadtlander U.S.A., Inc. and
Stadt Solutions LLC.
"Tax" means any of the following, and "Taxes" means all of the
following, imposed by or payable to any Governmental Authority: any income,
gross receipts, license, payroll, employment, excise, severance, stamp,
business, occupation, premium, windfall profits, environmental (including taxes
under section 59A of the Code), capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, or value added tax, any
alternative or add-on minimum tax, any estimated tax, and any levy, impost,
duty, assessment, withholding or any other governmental charge of any kind
whatsoever, in each case including any interest, penalty, or addition thereto,
whether disputed or not.
"Total Option Appreciation" means the total Aggregate Appreciation on
all Stock Options held by all Optionees immediately prior to the consummation of
the Closing.
"Transaction Agreements" means this Agreement and, in the case of the
Canadian Seller, the term "Transaction Agreements" also means the Voting Trust
Agreement, the Proxy, the Assignment and the Back-Up Option Agreement, in the
case of the US Seller the term "Transaction Agreements" also means the
Assignment and in the case of the Purchaser, the term "Transaction Agreements"
also means the Voting Trust Agreement.
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"Voting Trust Agreement" means a voting trust agreement among the
Purchaser, the Canadian Seller and those subsidiaries of the Canadian Seller
that own PharMerica Shares, dated the Closing Date, in the form and substance of
the voting trust agreement annexed hereto as Appendix 1.4.
Section 1.2 Terms Defined in Other Sections. The following terms are
defined elsewhere in this Agreement in the following Sections:
<TABLE>
<S> <C>
Acceleration Indebtedness 6.18
Acquisition Agreement 6.8.2
Act 2.3.1
Aggregate Appreciation 6.13.1.6
Allocation Schedule 6.9.1
Antitrust Division 6.10
Assignment 6.21
Audit Firm 6.22.4
Bank Debt 6.18
BBC Delivered Shares 2.4.2
BBC SEC Documents 5.6.1
BBC Shares 2.3.1
Bona Fide Offer 6.15.2
Businesses 3.1
Business Combination 8.8.2
Canadian Seller Debt 6.18
Canadian Seller's Board Recommendation 4.9
Canadian Seller's SEC Documents 4.8
Cash Election Notice 2.2.4.1
Closing 2.7
Closing Date 2.7
Companies' Disclosure Schedule 3.1
Company Permits 3.21.1
Company's Bylaws 3.1
Company's Articles 3.1
Competing Transaction 6.8.1
Confidential Information 6.6
Contract 3.17
Controlled Group Liability 3.16.1
Damages 9.2
Decreased Consideration 2.2.3.2
Designated Optionee 6.13.1.5
Designated Optionee Option Cancellation 7.2.9
Agreements
Disposition Notice 6.15.2
</TABLE>
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<PAGE> 9
<TABLE>
<S> <C>
Employee Agreements 3.28
Environmental Laws 3.22
Environmental Permit 3.22
ERISA Affiliate 3.16.1
Estimated Net Purchase Price 2.2.1.1
Fee-Related Bank Debt 6.18
Final Accounting Report 2.5.1.2
Financial Statements 3.15.1
Firm 2.5.1.3
FDA 3.21.2.2
FTC 6.10
Fully Diluted Number 6.13.1.2
Gross-Up Amount 6.9.3
Hazardous Materials 3.22
HSR Act 3.5.4
Increased Consideration 2.2.3.1
Indemnified Party 9.2.3
Indemnifying Party 9.2.3
Information Circular 6.17.2
Initial Accounting Report 2.5.1.1
Interim Audited Balance Sheet 6.22.1
Interim Balance Sheet 3.15.1
Interim Income and Stockholders' Equity 3.15.1
Statements
Interim Audited Financial Statements 6.22.1
Last Price 2.2.2.1
Material Contract 3.17
Multiemployer Plan 3.16.6
Multiple Employer Plan 3.16.6
Net Purchase Price 2.2.1.2
Non-Designated Optionee 6.13.1.5
Non-Designated Optionee Option 7.2.9
Cancellation Agreements
Offeror 6.15.2
Option Cancellation Agreements 7.2.9
Optionee 6.13.1.5
Outside Date 8.1.3
Plans 3.16.1
Premises 6.16
Programs 3.12.2
Proposed Statement 2.5.1.1
Purchaser's Disclosure Schedule 5.4
Qualified Plan 3.16.3
Quarterly Period 2.4.2
</TABLE>
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<TABLE>
<S> <C>
Registration Statement 2.3.3
Reimbursable Fees 6.18
Report 6.10
Retained Employees 6.14
SEC 2.3.3
September 30 Net Worth 6.22.5
Share Price 6.13.1.3
Stadtlander Shares 2.1
Stock Appreciation Figure 6.13.1.1
Stock Secured Debt 6.18
Stock Option 6.13.1.4
Subject PharMerica Shares 6.15
Support Agreements 3.25
Survival Period 9.1
Tax returns 3.8.4
Third Party Claim 9.3
Total Price 6.13.1.1
Transitional Consulting Agreements 6.14
Withdrawal Liability 3.16.1
Year 2000 Compliant 3.24
338(h)(10) Election 6.9
</TABLE>
Section 1.3 Interpretation. Unless otherwise indicated to the contrary
herein by the context or use thereof: (i) the words, "herein," "hereto,"
"hereof" and words of similar import refer to this Agreement as a whole and not
to any particular Section or paragraph hereof; (ii) words importing the
masculine gender shall also include the feminine and neutral genders, and vice
versa; (iii) words importing the singular shall also include the plural, and
vice versa; (iv) all references to "$" or "dollars" shall be references to U.S.
dollars; and (v) the word "including" means "including without limitation".
ARTICLE II
PURCHASE AND SALE OF STOCK; GRANT OF THE BACK-UP OPTION AGREEMENT AND OTHER
RIGHTS;
ADDITIONAL COVENANTS
Section 2.1 Purchase and Sale of the Stadtlander Common Stock; Grant of
the Back-up Option Agreement and Other Rights. Upon the terms and subject to the
conditions of this Agreement and on the basis of the representations, warranties
and agreements contained herein, at the Closing, (i) the Canadian Seller shall
sell, assign, transfer, convey and deliver to the Purchaser an aggregate of
279,760 shares of Stadtlander Common Stock, constituting approximately 13.96% of
the issued and outstanding shares of the Company's capital stock, (ii) the US
Seller shall sell, assign,
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transfer, convey and deliver to the Purchaser an aggregate of 1,724,248 shares
of Stadtlander Common Stock, constituting approximately 86.04% of the issued and
outstanding shares of the Company's capital stock, (iii) the Canadian Seller
shall (and shall cause its subsidiaries to) grant to the Purchaser the Proxy and
the Back-up Option Agreement and the rights conferred upon the Purchaser
pursuant to the Voting Trust Agreement and (iv) the Purchaser shall pay the
Estimated Net Purchase Price to the Sellers in the manner provided for herein
and thereby (a) purchase from the Canadian Seller and the US Seller the shares
of Stadtlander Common Stock referenced in clauses (i) and (ii) of this Section
2.1 (the "Stadtlander Shares") and (b) receive from the Canadian Seller and its
subsidiaries the Back-up Option Agreement and the Proxy and the rights conferred
upon the Purchaser pursuant to the Voting Trust Agreement.
Section 2.2 Estimated Net Purchase Price; Adjustments to the Estimated
Purchase Price; Payment of Consideration.
2.2.1 Certain Definitions.
2.2.1.1 The term "Estimated Net Purchase Price" shall
mean (i) Three Hundred Million Dollars ($300,000,000) plus (ii) the amount, if
any, by which the Certified Net Debt is less than One Hundred Million Dollars
($100,000,000) minus (iii) the amount, if any, by which the Certified Net Debt
is greater than One Hundred Million Dollars ($100,000,000) and minus (iv) the
Total Option Appreciation.
2.2.1.2 The term "Net Purchase Price" shall mean (i)
Three Hundred Million Dollars ($300,000,000) plus (ii) the amount, if any, by
which the Net Worth as of the Closing Date (as reflected in the Final Accounting
Report prepared pursuant to Section 2.5) exceeds the September 30 Net Worth plus
(iii) the amount, if any, by which the Final Net Debt is less than One Hundred
Million Dollars ($100,000,000) minus (iv) the amount, if any, by which the
September 30 Net Worth exceeds the Net Worth as of the Closing Date (as
reflected in the Final Accounting Report prepared pursuant to Section 2.5) minus
(v) the amount, if any, by which the Final Net Debt is greater than One Hundred
Million Dollars ($100,000,000) and minus (vi) the Total Option Appreciation.
2.2.2 Payment of the Estimated Net Purchase Price. Subject
to Section 2.2.4, upon the terms and subject to the conditions of this Agreement
and on the basis of the representations, warranties and agreements contained
herein, at the Closing, the Purchaser shall pay the Estimated Net Purchase Price
to the Sellers by (i) paying to the Canadian Seller in cash a sum equal to
13.96% of the Estimated Net Purchase Price by wire transfer to an account or
accounts specified in writing by the Canadian Seller, (ii) paying to the US
Seller in cash a sum equal to 36.04% of the Estimated Net Purchase Price by wire
transfer to an account or accounts specified in writing by the US Seller and
(iii) issuing and delivering to the US Seller a stock certificate, registered in
the US Seller's name, representing a number of shares of BBC Common Stock equal
to
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(x) 50% of the Estimated Net Purchase Price divided by (y) the Market Value.
In order to assure that the number of shares of BBC Common Stock to be issued
pursuant to this Section 2.2.2 properly gives effect to the Stock Split, the
following provisions shall apply:
2.2.2.1 In the event that the last sale price, regular way,
of the BBC Common Stock on the New York Stock Exchange (the "Last Price") does
not reflect the Stock Split for any trading day during the Market Price Period
and the Closing occurs prior to December 1, 1998, then, on December 1, 1998, the
Purchaser shall treat the shares issued pursuant to Section 2.2.2 as if they had
been issued on the record date for the Stock Split.
2.2.2.2 In the event that the Last Price does not reflect the
Stock Split for any trading day during the Market Price Period and the Closing
occurs on or after December 1, 1998, then the number of shares to be issued
pursuant to Section 2.2.2 at the Closing shall be equitably adjusted to give
effect to the Stock Split.
2.2.2.3 In the event that the Last Price reflects the Stock
Split for one or more trading days during the ten trading days utilized to
determine the Market Value, then the Closing shall not be held prior to December
1, 1998, notwithstanding any provision herein to the contrary.
2.2.3 Adjustments to the Estimated Net Purchase Price.
2.2.3.1 Increased Consideration. Subject to Section
2.2.4, if the Net Purchase Price is greater than the Estimated Net Purchase
Price, then, upon final determination of the Net Worth as of the Closing Date
and the Net Debt as of the Closing Date pursuant to Section 2.5 and calculation
of the amount by which the Net Purchase Price exceeds the Estimated Net Purchase
Price (such excess amount, the "Increased Consideration"), the Purchaser shall
pay the Increased Consideration to the Sellers by (i) paying to the Canadian
Seller in cash a sum equal to 13.96% of the Increased Consideration by wire
transfer to an account or accounts specified in writing by the Canadian Seller,
(ii) paying to the US Seller in cash a sum equal to 36.04% of the Increased
Consideration by wire transfer to an account or accounts specified in writing by
the US Seller and (iii) issuing and delivering to the US Seller a stock
certificate, registered in the US Seller's name, representing a number of shares
of BBC Common Stock equal to (x) 50% of the Increased Consideration divided by
(y) the Market Value.
2.2.3.2 Decreased Consideration. Subject to Section
2.2.4, if the Net Purchase Price is less than the Estimated Net Purchase Price,
then, upon final determination of the Net Worth as of the Closing Date and the
Net Debt as of the Closing Date pursuant to Section 2.5 and calculation of the
amount by which the Estimated Net Purchase Price exceeds the Net Purchase Price
(such excess amount,
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the "Decreased Consideration"), the Sellers shall refund the Decreased
Consideration to the Purchaser as follows: (i) the Canadian Seller shall pay to
the Purchaser in cash a sum equal to 13.96% of the Decreased Consideration by
wire transfer to an account or accounts specified in writing by the Purchaser,
(ii) the US Seller shall pay to the Purchaser in cash a sum equal to 36.04% of
the Decreased Consideration by wire transfer to an account or accounts specified
in writing by the Purchaser and (iii) the US Seller shall transfer to the
Purchaser a stock certificate, registered in the US Seller's name and duly
endorsed for transfer, representing a number of shares of BBC Common Stock equal
to (x) 50% of the Decreased Consideration divided by (y) the Market Value.
2.2.4 Notwithstanding any provision herein to the contrary,
if the Market Value is less than $49.625 (subject to the proviso in the
definition of the term "Market Value" regarding the Stock Split), the Purchaser
shall have the right to change the nature of the consideration to be paid to the
Sellers in accordance with the following provisions:
2.2.4.1 At any time prior to the consummation of the
Closing, the Purchaser shall have the right to deliver to the Sellers a notice
(the "Cash Election Notice") advising the Sellers that the Purchaser desires to
pay the entire Net Purchase Price in cash rather than pay the Net Purchase Price
partly in cash and partly in shares of BBC Common Stock. In the event that the
Purchaser delivers a Cash Election Notice to the Sellers prior to the
consummation of the Closing, then, notwithstanding any provision herein to the
contrary, the following provisions shall apply:
2.2.4.1.1 The Purchaser shall not have any
obligation to issue or deliver any shares of BBC Common Stock pursuant to
Section 2.2.2 and Sections 2.2.2.1, 2.2.2.2 and 2.2.2.3 shall cease to apply.
2.2.4.1.2 In addition to the cash payments
contemplated by clauses (i) and (ii) of Section 2.2.2 and in lieu of the
issuance of shares of BBC Common Stock pursuant to clause (iii) of Section
2.2.2, the Purchaser shall pay to the US Seller in cash a sum equal to 50% of
the Estimated Net Purchase Price by wire transfer to an account or accounts
specified in writing by the US Seller.
2.2.4.1.3 If the Net Purchase Price is
greater than the Estimated Net Purchase Price, the Purchaser shall not have any
obligation to issue or deliver any shares of BBC Common Stock pursuant to
Section 2.2.3.1.
2.2.4.1.4 If the Net Purchase Price is
greater than the Estimated Net Purchase Price, then, in addition to the cash
payments contemplated by clauses (i) and (ii) of Section 2.2.3.1 and in lieu of
the issuance of shares of BBC Common Stock pursuant to clause (iii) of Section
2.2.3.1, the Purchaser shall pay to the US Seller in cash a sum equal to 50% of
the Increased Consideration by wire transfer
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to an account or accounts specified in writing by the US Seller.
2.2.4.1.5 If the Net Purchase Price is less
than the Estimated Net Purchase Price, the Sellers shall not have any obligation
to refund any shares of BBC Common Stock pursuant to Section 2.2.3.2.
2.2.4.1.6 If the Net Purchase Price is less
than the Estimated Net Purchase Price, then, in addition to the cash refunds
contemplated by clauses (i) and (ii) of Section 2.2.3.2 and in lieu of the
refund of shares of BBC Common Stock pursuant to clause (iii) of Section
2.2.3.2, the US Seller shall refund to the Purchaser in cash a sum equal to 50%
of the Decreased Consideration by wire transfer to an account or accounts
specified in writing by the US Seller.
2.2.4.2 In the event that the Purchaser delivers a
Cash Election Notice to the Sellers prior to the consummation of the Closing,
Sections 2.3 and 2.4 of this Agreement shall cease to apply.
2.2.4.3 In the event that (i) the Purchaser delivers
a Cash Election Notice to the Sellers prior to the consummation of the Closing
and (ii) there is an inconsistency between this Section 2.2.4 and any other
provision of this Agreement, the provisions of this Section 2.2.4 shall govern.
2.2.5 Notwithstanding any provision herein to the contrary,
the Purchaser shall not issue fractional shares of BBC Common Stock hereunder.
In lieu of issuing a fractional share, the Purchaser shall pay a cash amount
equal to the applicable fraction multiplied by the Market Value, as equitably
adjusted to reflect the Stock Split.
Section 2.3 Securities Law Matters.
2.3.1 Private Offering. The Sellers acknowledge that the
shares of BBC Common Stock to be issued and delivered to the Sellers hereunder
(the "BBC Shares") will not be registered under the Securities Act of 1933, as
amended (the "Act"), but will be issued in reliance upon the exemption afforded
by Section 4(2) of the Act, and that the Purchaser is relying upon the truth and
accuracy of the representations set forth in Section 4.7. Each certificate
representing BBC Shares issued pursuant to this Agreement shall bear the
following legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
WITHOUT REGISTRATION PURSUANT TO THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND
MAY NOT BE TRANSFERRED UNLESS THEY ARE SO REGISTERED OR, IN THE
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OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THIS CORPORATION, SUCH
TRANSFER IS EXEMPT FROM REGISTRATION."
"IN THE EVENT THAT THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE REGISTERED FOR RESALE PURSUANT TO THE ABOVE-MENTIONED LAWS, SUCH
SHARES MAY ONLY BE TRANSFERRED BY SALE ON THE NEW YORK STOCK EXCHANGE
PURSUANT TO SEC RULE 153 WHILE SUCH REGISTRATION IS EFFECTIVE, UNLESS,
IN THE OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THIS CORPORATION,
SUCH TRANSFER IS EXEMPT FROM REGISTRATION."
The Purchaser shall give instructions to its transfer agent consistent with the
foregoing legends.
2.3.2 No Transfer. The Sellers will not sell, pledge or
otherwise transfer the BBC Shares unless the BBC Shares are registered under the
Act and under all applicable securities laws of other jurisdictions or are
exempt therefrom in the opinion of counsel reasonably satisfactory to the
Purchaser, it being agreed that Harwell Howard Hyne Gabbert & Manner, P.C. is
acceptable to the Purchaser.
2.3.3 Agreement to Register. Prior to the Closing, the
Purchaser shall prepare a registration statement on Form S-3 (the "Registration
Statement") pursuant to the Act covering the resale of BBC Shares to be issued
pursuant to this Agreement and shall file such Registration Statement with the
SEC on or before the first Business Day following the Closing, provided that the
Purchaser has available to it, in form satisfactory for filing, any consolidated
financial information and pro forma financial information regarding the Company
necessary or appropriate for filing with the SEC. The Purchaser and the Sellers
shall both use their best efforts to expedite the preparation of such
information to the maximum extent practicable. Subsequent to the initial filing
of the Registration Statement, the Purchaser shall thereafter use its best
efforts to have such Registration Statement (covering the resale of all of the
BBC Shares to be issued pursuant to this Agreement) declared effective by the
Securities and Exchange Commission ("SEC") promptly after the Closing Date, and
to keep that Registration Statement current, subject to the provisions set forth
in Appendix 2.3.7 annexed hereto regarding the temporary suspension of use of
the Registration Statement, until the two year anniversary of the Closing Date.
The Purchaser reserves the right to include other shares of BBC Common Stock in
the Registration Statement, provided that such inclusion does not adversely
affect the Sellers in any substantive respect. The Purchaser agrees to use its
best efforts to cover in the Registration Statement, either initially or by
amendment when applicable, any of the BBC Shares which are pledged by one or
more of the Sellers to a lender and subsequently resold by such lender upon a
default by the applicable borrower and any other BBC Shares which
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are held by a Person to whom registration rights are transferred in accordance
with Section 2.3.6.
2.3.4 Costs. The Purchaser shall bear all costs incurred in
preparing and filing the Registration Statement, including, without limitation,
all applicable legal fees (excluding the fees of counsel to the Sellers),
accounting fees, printing fees, and SEC filing fees; provided, however, that the
Purchaser shall not be responsible for any underwriting commissions or
discounts, brokerage fees or legal fees or disbursements incurred by any person
or entity (other than the Purchaser) that sells any shares of BBC Common Stock
pursuant to the Registration Statement. Subject to the qualifications in the
immediately preceding sentence, the Purchaser shall also bear all costs of
keeping the Registration Statement current during the applicable period
described in Section 2.3.3.
2.3.5 Information. The Sellers will furnish the Purchaser
with all information concerning the Sellers reasonably required for inclusion in
the Registration Statement. The Sellers and the Purchaser represent and warrant
that no information to be furnished for the Registration Statement will contain
any statement which, at the time and in the light of the circumstances under
which it is made, is false or misleading with respect to any material fact, or
which omits to state any material fact necessary in order to make the statements
therein not false or misleading or necessary to correct any statement in any
earlier information furnished hereunder which has become false or misleading.
2.3.6 Personal Rights. The registration rights set forth in
this Section 2.3 are personal to the Sellers and may not be transferred or
assigned by the Sellers to any other person or entity other than (a) an
Affiliate of the Canadian Seller or the US Seller, (b) a lender who receives
such shares in accordance with Section 2.4 and pursuant to a bona pledge by the
Canadian Seller or the US Seller or (c) a Qualified Investor, provided, however,
that such rights shall not be assigned to a Qualified Investor unless the
Purchaser was offered the opportunity, in writing , to purchase the BBC Shares
offered to the Qualified Investor on terms no less favorable to the Purchaser
than the terms offered to the Qualified Investor, the Purchaser did not accept
such offer within ten Business Days of the date that the offer is delivered to
the Purchaser and the Qualified Investor completes such purchase within 120 days
of the date that such offer was made to the Purchaser.
2.3.7 Registration Rights. The Purchaser and the Sellers
shall abide by the registration rights provisions set forth in Appendix 2.3.7
annexed hereto.
Section 2.4 Restrictions on Sales and Other Transfers.
2.4.1 General Restrictions. Except as otherwise provided in
Section 2.4.2, during the first 540 calendar days after the Closing Date, the
Sellers shall not (x)
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effect an offer, pledge (other than a pledge which, by its terms, subjects the
pledgee to the same restrictions to which the Sellers are subject under this
Section 2.4 pursuant to an agreement acceptable to the Purchaser, such
acceptance not to be unreasonably withheld), sale, contract of sale, sale of any
option or contract to purchase, purchase of any option or contract to sell,
grant of any option, right or warrant to purchase, or other transfer or
disposition of , directly or indirectly, any of the BBC Shares or any securities
convertible into or exercisable or exchangeable for the BBC Shares (including,
without limitation, BBC Shares or securities convertible into or exercisable or
exchangeable for BBC Shares which may be deemed to be beneficially owned by the
Sellers in accordance with the rules and regulations of the SEC) or (y) enter
into any swap or other arrangement that transfers all or a portion of the
economic consequences associated with the ownership of any BBC Shares
(regardless of whether any of the transactions described in clause (x) or (y)
(each, a "Disposition") are to be settled by the delivery of BBC Shares, or such
other securities, in cash or otherwise). The Sellers authorize the Purchaser to
cause the Purchaser's transfer agent to decline to transfer and/or to note stop
transfer restrictions on the transfer books and records of the Purchaser with
respect to any of the BBC Shares and any securities convertible into or
exercisable or exchangeable for the BBC Shares for which the Sellers are the
beneficial or record holder and agree to cause the record holder to cause the
transfer agent to decline to transfer and/or to note stop transfer restrictions
on such books and records with respect to such shares or securities except to
the extent that such transfers are permitted pursuant to this Agreement.
2.4.2 Sequential Lapse of Restrictions. During the First
Quarterly Period, the Sellers have the right to make a Disposition of up to
thirty percent (30%) of the BBC Shares issued to the Sellers at the Closing or
subsequent to the Closing pursuant to the terms hereof (the "BBC Delivered
Shares"), less any such BBC Delivered Shares which are subject to a Disposition
by or on behalf of any lender during the First Quarterly Period upon default of
any loan made to either of the Sellers. During each of the Second Quarterly
Period, Third Quarterly Period, Fourth Quarterly Period and Fifth Quarterly
Period (each, a "Quarterly Period"), the Sellers shall have the right to effect
a Disposition of up to (x) ten percent (10%) of the BBC Delivered Shares, less
any BBC Delivered Shares which are subject to a Disposition by or on behalf of
any lender during such current Quarterly Period upon default of any loan made to
either of the Sellers, plus any BBC Delivered Shares which the Sellers had the
right to subject to a Disposition, but did not subject to a Disposition, during
any prior Quarterly Period; provided, however, that the Sellers shall not
subject to a Disposition more than thirty percent (30%) of the BBC Delivered
Shares in any one Quarterly Period, less any BBC Delivered Shares which are
subject to a Disposition by or on behalf of any lender during such Quarterly
Period upon default of any loan made to either of the Sellers. During the Sixth
Quarterly Period, the Sellers shall have the right to subject to a Disposition
up to thirty percent (30%) of the BBC Delivered Shares, less any BBC Delivered
Shares which are subject to a Disposition by or on behalf of any lender during
the Sixth Quarterly Period upon default of any loan made to either of the
Sellers. The
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restrictions set forth in Section 2.4.1 shall cease to apply after the last day
of the Sixth Quarterly Period. In the event that either of the Sellers utilize
any of the BBC Delivered Shares as collateral on a loan on or before the last
day of the Sixth Quarterly Period, the Sellers shall require that the lender
execute an agreement, a copy of which shall be delivered to the Purchaser and
shall be acceptable to the Purchaser, such acceptance not to be unreasonably
withheld, that (a) expressly states that the lender will not effect a
Disposition of a greater number of BBC Delivered Shares in any of the
above-mentioned periods than the Sellers are entitled to subject to a
Disposition in such periods and (b) acknowledges that the Purchaser is entitled
to rely upon such agreement.
2.4.3 The Sellers agree that the certificates representing
the BBC Shares shall also bear a legend referring to the restrictions set forth
in this Section 2.4.
Section 2.5 Determination of the Net Worth as of the Closing
Date.
2.5.1 Accountants' Reports.
2.5.1.1 Proposed Statement and Initial Accounting
Report. The Sellers shall prepare at their expense, and furnish to the Purchaser
and CPA, a proposed consolidated balance sheet of the Company as of the Closing
Date prepared in accordance with GAAP, consistently applied (the "Proposed
Statement"). Such Proposed Statement shall provide sufficient detail to
establish, among other things, the Net Debt as of the Closing Date and the Net
Worth as of the Closing Date . The CPA shall submit the Proposed Statement to a
Limited Audit and, based upon the results of that Limited Audit, the Purchaser
shall render a draft report (the "Initial Accounting Report") to the Sellers and
the Purchaser with respect to the Net Worth as of the Closing Date and the Net
Debt as of the Closing Date. As soon as practicable, but, in any event, not more
than ninety (90) calendar days after the Purchaser receives the Proposed
Statement and any information that the Purchaser or the CPA reasonably and
promptly requests from the Sellers and/or the Accountants to complete the
Initial Accounting Report, the Purchaser shall furnish the Initial Accounting
Report to the Sellers, along with a schedule of the adjustments made to the
Proposed Statement.
2.5.1.2 Time for Objections. After the Purchaser
shall have furnished the Initial Accounting Report to the Sellers, if the
Sellers should object to that report on the grounds that it is not consistent
with GAAP, consistently applied, the Sellers may give written notice of their
objection to the Purchaser within twenty (20) calendar days after the Sellers'
receipt of that report. If requested by the Sellers at the time of delivery of
such notice, the Purchaser shall cause the CPA promptly to make available to the
Sellers and the Accountants any report prepared by the CPA with respect to the
matters in dispute in connection with the Initial Accounting Report. If no such
objection is made within such twenty (20) day period, or if the Purchaser and
the Sellers agree upon all matters in dispute, that Initial Accounting Report,
as adjusted to
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reflect any such agreements, shall be final and binding on all parties hereto
for the purpose of determining the Net Worth as of the Closing Date and the Net
Debt as of the Closing Date and shall be referred to as the "Final Accounting
Report".
2.5.1.3 Dispute Resolution. If the Purchaser and
the Sellers are unable to resolve all items in dispute (with respect to the
calculation of the Net Worth as of the Closing Date and the Net Debt as of the
Closing Date) within fifteen (15) calendar days after the Purchaser's receipt of
the Sellers' written objections to the Initial Accounting Report, then those
items in dispute shall be submitted for resolution to a firm of independent
certified public accountants acceptable to the Sellers and the Purchaser (the
"Firm"). The Firm shall resolve such disputes by application of GAAP,
consistently applied, and such procedures as the Firm, in its discretion,
determines to be appropriate. The determination of the Firm with respect to
those items in dispute, together with the determinations of the Purchaser and
the Sellers with respect to those items not in dispute, shall become the "Final
Accounting Report" and shall be final and binding upon all parties hereto for
purposes of determining the Net Worth as of the Closing Date and the Net Debt as
of the Closing Date. The Purchaser and the Sellers will use reasonable efforts
to resolve these matters as rapidly as possible.
2.5.1.4 Payment of Fees. The Sellers shall pay the
fees of its accountants, including without limitation the Accountants to the
extent that the Accountants are involved, in connection with the preparation
and/or review of the Proposed Statement, the Initial Accounting Report and/or
the Final Accounting Report and the Purchaser shall pay the fees of the CPA,
including fees in connection with the preparation and/or review of the Initial
Accounting Report and the Final Accounting Report. The fees and disbursements of
any Firm employed pursuant to the provisions of Section 2.5.1.3 shall be borne
one-half by the Purchaser and one-half by the Sellers.
2.5.2 Asset Value. In determining the Net Worth as of the
Closing Date, the consolidated assets of the Company and its Subsidiaries shall
be valued as of the Closing Date in accordance with GAAP, consistently applied.
2.5.3 Liability Value. In determining the Net Worth as of
the Closing Date, the consolidated liabilities of the Company and its
Subsidiaries shall be valued as of the Closing Date in accordance with GAAP,
consistently applied, provided that notwithstanding any provision herein to the
contrary and regardless of the application of GAAP, any prepayment fees,
breakage fees or similar fees paid by any of the Companies or the Purchaser at
or after the Closing with respect to any indebtedness of any of the Companies as
of the Closing Date shall be treated as a liability of the Companies as of the
Closing Date for purposes of determining the Net Worth as of the Closing Date.
Section 2.6 Determination of September 30 Net Worth. The
September 30 Net Worth shall be determined in accordance with Section 6.22.
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Section 2.7 Closing. Subject to the rights of the parties to
terminate this Agreement in accordance with Article VIII and subject to Sections
2.2.2.3 and 6.22.4, the closing of the transactions contemplated hereby (the
"Closing") shall take place at the offices of Lowenstein Sandler PC, 65
Livingston Avenue, Roseland, New Jersey, at 10:00 A.M. on the fifth Business Day
after the satisfaction or waiver of the conditions set forth in Article VII (but
in no event prior to the twenty-first calendar day after the Purchaser receives
the Interim Audited Financial Statements pursuant to Section 6.22), or at such
other time and place as is mutually agreed by the Purchaser and the Seller. The
time and date of the Closing is herein called the "Closing Date".
ARTICLE III
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANIES
The Company, the Canadian Seller and the US Seller jointly and
severally represent and warrant to the Purchaser as follows:
Section 3.1. Organization and Standing; Business. Each of the
Companies is a corporation or limited liability company duly organized, validly
existing and in good standing under the laws of the state of its organization
with full corporate power and authority to own, lease, use and operate its
properties and to conduct its business as and where now owned, leased, used,
operated and conducted. Each of the Companies is duly qualified to do business
and in good standing in each jurisdiction in which the nature of the business
conducted by it or the property it owns, leases or operates requires it to so
qualify, except where the failure to be so qualified or in good standing in such
jurisdiction would not reasonably be expected to result in a Material Adverse
Change with respect to the Companies taken as a whole. None of the Companies is
in default in the performance, observance or fulfillment of any provision of its
certificate of incorporation, as amended and restated, or its Bylaws, as in
effect on the date hereof. The Company has heretofore furnished to the Purchaser
a complete and correct copy of the Company's Articles of Incorporation, as
amended and restated (the "Company's Articles"), and the Company's Bylaws, as in
effect on the date hereof (the "Company's By-Laws"). Listed in Section 3.1 to
the disclosure schedule delivered by the Sellers to the Purchaser and dated the
date hereof (the "Companies' Disclosure Schedule") is each jurisdiction in which
any of the Companies is qualified to do business and in good standing as of the
date of this Agreement. Section 3.1 of the Companies' Disclosure Schedule also
sets forth a brief description of each of the businesses in which the Companies
are engaged (the "Businesses").
Section 3.2. Subsidiaries. The Company does not own, directly or
indirectly, any equity or other ownership interest in any corporation,
partnership, joint venture, limited liability company or other entity or
enterprise, except for the subsidiaries and other entities set forth in Section
3.2 to the Companies' Disclosure Schedule. Except as
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set forth in Section 3.2 to the Companies' Disclosure Schedule, none of the
Companies is subject to any obligation or requirement to provide funds to or
make any investment (in the form of a loan, capital contribution or otherwise)
in any of the Companies that is not wholly owned by one or more of the
Companies. Except as set forth in Section 3.2 to the Companies' Disclosure
Schedule, the Company owns directly or indirectly each of the outstanding shares
of capital stock (or other ownership interests having by their terms ordinary
voting power to elect a majority of directors or others performing similar
functions with respect to such subsidiary) of each of the subsidiaries and other
entities identified in Section 3.2 of the Companies' Disclosure Schedule. Each
of the outstanding shares of capital stock or other ownership interests of each
of such subsidiaries and other entities is duly authorized, validly issued,
fully paid and nonassessable, and at Closing will be owned, directly or
indirectly, by the Company free and clear of all liens, pledges, security
interests, claims or other encumbrances. The following information for each
subsidiary of the Company is set forth in Section 3.2 to the Companies'
Disclosure Schedule, as applicable: (i) its name and jurisdiction of
incorporation or organization; (ii) for a subsidiary which is not wholly owned,
directly or indirectly, by the Company, its authorized capital stock or share
capital or other authorized equity; and (iii) for a subsidiary which is not
wholly owned, directly or indirectly, by the Company, the number of issued and
outstanding shares of capital stock or share capital or other equity interests,
the record owner(s) thereof to the extent known to the Sellers or the Company
and the number of issued and outstanding shares of capital stock or share
capital or other equity interests beneficially owned, directly or indirectly, by
the Company. Other than as set forth in Section 3.2 to the Companies' Disclosure
Schedule, there are no outstanding subscriptions, options, warrants, puts,
calls, agreements, understandings, claims or other commitments or rights of any
type relating to the issuance, sale or transfer of any securities or other
equity interests of any subsidiary or other entity listed in Section 3.2 to the
Companies' Disclosure Schedule, nor are there outstanding any securities or
other equity interests which are convertible into or exchangeable for any shares
of capital stock or other equity interests of any such subsidiary or other
entity, and none of the Companies has any obligation of any kind to issue any
additional securities or grant any additional equity interests of any subsidiary
or other entity listed in Section 3.2 of the Companies' Disclosure Schedule or
to pay for or repurchase any securities or other equity interests of any such
subsidiary or other entity or any predecessor thereof.
Section 3.3. Corporate Power and Authority. The Company has all
requisite corporate power and authority to enter into and deliver the
Transaction Agreements, to perform its obligations hereunder and thereunder and
to consummate the transactions contemplated hereby and thereby. The execution
and delivery of the Transaction Agreements by the Company have been duly
authorized by all necessary corporate action on the part of the Company. This
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company enforceable against it in
accordance with its terms, except insofar as its enforcement may be limited by
(a) bankruptcy, insolvency, moratorium or similar laws
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affecting the enforcement of creditors' rights generally and (b) equitable
principles limiting the availability of equitable remedies. All persons who
executed this Agreement on behalf of the Company have been duly authorized to do
so.
Section 3.4. Capitalization of the Company. As of the date hereof,
the Company's authorized capital stock consisted solely of 10,000,000 shares of
Stadtlander Common Stock, of which (i) 2,004,008 shares are issued and
outstanding, (ii) no shares are issued and held in treasury and no shares are
held by subsidiaries of the Company and (iii) 237,773 shares are reserved for
issuance upon the exercise of outstanding options, 162,227 shares are reserved
for issuance upon the exercise of options which have not been granted and no
shares are reserved for issuance for any other reason. Each outstanding share of
the Company's capital stock is duly authorized and validly issued, fully paid
and nonassessable, and has not been issued in violation of any preemptive or
similar rights. Other than as set forth in the first sentence hereof or in
Section 3.4 to the Companies Disclosure Schedule, there are no outstanding
subscriptions, options, warrants, puts, calls, agreements, understandings,
claims or other commitments or rights of any type relating to the issuance,
sale, repurchase or transfer by the Company of any securities of the Company,
nor are there outstanding any securities which are convertible into or
exchangeable for any shares of capital stock of the Company, and neither the
Company nor any subsidiary of the Company has any obligation of any kind to
issue any additional securities or to pay for or repurchase any securities of
the Company or any predecessor. Section 3.4 of the Companies' Disclosure
Schedule accurately sets forth as of the date hereof the names of, and the
number of shares of each class (including the number of shares issuable upon
exercise of stock options and the exercise price and vesting schedule with
respect thereto) and the number of options held by, all holders of options to
purchase the Company's capital stock. The Company has no agreement, arrangement
or understandings to register any securities of the Company or any of its
subsidiaries under the Securities Act of 1933, as amended, or under any state
securities law and has not granted registration rights to any person or entity
(other than agreements, arrangements or understandings with respect to
registration rights that are no longer in effect as of the date of this
Agreement). Unless any Stock Options are canceled, expire or are otherwise
terminated prior to the Closing, the Fully Diluted Number shall be 2,337,282
plus the number of shares subject to the options described in Section IV,C. of
the Forster Agreement if any such options are granted.
Section 3.5. Conflicts; Consents and Approvals. Except as set
forth in Section 3.5 of the Companies' Disclosure Schedule, neither the
execution and delivery of this Agreement or any of the other Transaction
Agreements, nor the consummation of the transactions contemplated hereby or
thereby, will:
3.5.1 conflict with, or result in a breach of any provision
of, the Company's Articles, the Company's Bylaws or the certificate of
incorporation, bylaws or other organizational document of any subsidiary of the
Company that is not, directly or
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indirectly, wholly owned by the Company;
3.5.2 violate, or conflict with, or result in a breach of
any provision of, or constitute a default (or an event which, with the giving of
notice, the passage of time or otherwise, would constitute a default) under, or
entitle any party (with the giving of notice, the passage of time or otherwise)
to terminate, accelerate, modify or call a default under, or result in the
creation of any lien, security interest, charge or encumbrance upon any of the
properties or assets of any of the Companies under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, deed of trust, license,
contract, undertaking, agreement, lease or other instrument or obligation to
which any of the Companies is a party;
3.5.3 violate any order, writ, injunction, decree, statute,
rule or regulation applicable to any of the Companies or any of their respective
properties or assets; or
3.5.4 require any action or consent or approval of, or
review by, or registration or filing by the Company or any of its affiliates
with, any third party or any Governmental Authority, other than (i) approval of
the sale of the Stadtlander Shares contemplated hereby by the shareholders of
the Canadian Seller, (ii) actions required by the Hart Scott Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and (iii) registrations or
other actions required under Canadian, federal and state securities laws as are
contemplated by this Agreement.
except in the case of Sections 3.5.2, 3.5.3 and 3.5.4 for any of the foregoing
that would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change with respect to the Companies taken as a
whole or a material adverse effect on the ability of the parties hereto to
consummate the transactions contemplated hereby.
Section 3.6. No Material Adverse Change; Other Changes. Except as
disclosed in any report filed by the Canadian Seller with the SEC prior to the
date of this Agreement, in the Financial Statements or in any other statement
made in the Companies' Disclosure Schedule, since December 31, 1997, there has
been no change in the assets, liabilities, results of operations or financial
condition of the Companies which would constitute a Material Adverse Change with
respect to the Companies taken as a whole or any event, occurrence or
development which would have a material adverse effect on the ability of the
Company or the Sellers to consummate the transactions contemplated hereby.
Except as disclosed in any report filed by the Canadian Seller with the SEC
prior to the date of this Agreement, in the Financial Statements or in any other
statement made in the Companies' Disclosure Schedule, no event has occurred
since December 31, 1997 which, if such event had occurred subsequent to the date
hereof, would constitute a breach of Section 6.3.
Section 3.7 Intentionally omitted.
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Section 3.8. Taxes. Except as set forth in Section 3.8 to the
Companies' Disclosure Schedule and except for such matters that would not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Change with respect to the Companies taken as a whole:
3.8.1 The Companies (i) have duly filed, or have received
valid extensions for the filing of, all federal, state, local and foreign
income, franchise, excise, real and personal property and other Tax returns and
reports (including, but not limited to, those filed on a consolidated, combined
or unitary basis) required to have been filed by the Companies prior to the date
hereof, all of which foregoing Tax returns and reports are true and correct;
(ii) have within the time and manner prescribed by applicable law paid or, prior
to the Closing Date, will pay all Taxes, interest and penalties required to be
paid in respect of the periods covered by such returns or reports or otherwise
due to any federal, state, foreign, local or other taxing authority; (iii) have
adequate reserves on their financial statements for any Taxes in excess of the
amounts so paid; (iv) are not delinquent in the payment of any Tax and have not
requested or filed any document having the effect of causing any extension of
time within which to file any returns in respect of any fiscal year which have
not since been filed; and (v) have not received written notice of any
deficiencies for any Tax from any taxing authority, against any of the Companies
for which there are not adequate reserves. None of the Companies is the subject
of any currently ongoing Tax audit. As of the date of this Agreement, there are
no pending requests for waivers of the time to assess any Tax, other than those
made in the Ordinary Course of Business and for which payment has been made or
there are adequate reserves. With respect to any taxable period ended prior to
December 31, 1993, all federal income tax returns including any of the Companies
have been audited by the Internal Revenue Service or are closed by the
applicable statute of limitations. None of the Companies has waived any statute
of limitations in respect of Taxes or agreed to any extension of time with
respect to a Tax assessment or deficiency. There are no liens with respect to
Taxes upon any of the properties or assets, real or personal, tangible or
intangible, of any of the Companies (other than liens for Taxes not yet due).
Since January 1, 1996, no claim has been made in writing by an authority in a
jurisdiction where none of Companies and its subsidiaries files Tax returns that
any of the Companies is or may be subject to taxation by that jurisdiction. None
of the Companies has filed an election under Section 341(f) of the Code to be
treated as a consenting corporation.
3.8.2 None of the Companies is obligated by any contract,
agreement or other arrangement to indemnify any other Person with respect to
Taxes. None of the Companies is now or has ever been a party to or bound by any
agreement or arrangement (whether or not written and including, without
limitation, any arrangement required or permitted by law) binding any of the
Companies which (i) requires any of the Companies to make any Tax payment to
(other than payments made prior to September 30, 1998 or payments which are
adequately reserved on the Company's
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consolidated balance sheet as of September 30, 1998 delivered to the Purchaser
prior to the date hereof) or for the account of any other Person, (ii) affords
any other Person the benefit of any net operating loss, net capital loss,
investment Tax credit, foreign Tax credit, charitable deduction or any other
credit or Tax attribute which could reduce Taxes (including, without limitation,
deductions and credits related to alternative minimum Taxes) of any of the
Companies, or (iii) requires or permits the transfer or assignment of income,
revenues, receipts or gains to any of the Companies, from any other Person.
3.8.3 The Companies have withheld and paid all Taxes
required to have been withheld and paid in connection with amounts paid or owing
to any employee, independent contractor, creditor, shareholder or other third
party, other than Taxes the payment of which would not result in a Material
Adverse Change with respect to the Companies taken as a whole.
3.8.4 "Tax returns" means returns, reports and other forms
to be filed (whether on a mandatory or elective basis) with any Governmental
Authority of the United States or any other jurisdiction responsible for the
imposition or collection of Taxes.
Section 3.9. Compliance with Law. Except as set forth in Section
3.9 to the Companies' Disclosure Schedule, each of the Companies is in
compliance, and at all times since June 30, 1996 has been in compliance, with
all applicable laws relating to the Companies or the Businesses or the
Companies' properties, except where the failure to be in compliance with such
laws (individually or in the aggregate) would not reasonably be expected to
result in a Material Adverse Change with respect to the Companies taken as a
whole or where such non-compliance has been cured prior to the date hereof.
Except as disclosed in Section 3.9 to the Companies' Disclosure Schedule, no
investigation or review by any Governmental Authority with respect to any of the
Companies is pending, or, to the knowledge of the Company or the Sellers,
threatened, nor, to the knowledge of the Company and the Sellers, has any
Governmental Authority indicated in writing an intention to conduct the same,
other than those the outcome of which would not reasonably be expected to result
in a Material Adverse Change with respect to the Companies taken as a whole.
Section 3.10. Intellectual Property. Except as would not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Change with respect to the Companies taken as a whole, the Companies own
or possess adequate licenses or other valid rights to use all of their
Proprietary Rights, and there has not been any written or, to the knowledge of
the Company and the Sellers, oral assertion or claim against any of the
Companies challenging the validity or the use by any of the Companies of any of
the foregoing. Other than licenses generally available to the public at
reasonable cost and material licenses or rights to use set forth in Section 3.10
to the Companies' Disclosure Schedule, the Companies own all of the Proprietary
Rights and
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no material licenses or other grant of valid rights from any third party to use
any of the Companies' Proprietary Rights is necessary for the use of these
Proprietary Rights in substantially the same manner as they are presently used
by the Companies in the conduct of the Businesses. Except as set forth in
Section 3.10 of the Companies' Disclosure Schedule or with respect to
commercially and readily available third party software, the Companies have the
right and license to use, copy, modify, create derivative work from and
distribute all software programs and technical documentation therefor that is
included in the Proprietary Rights. The conduct of the Businesses as currently
conducted by the Companies does not conflict with or infringe upon any patent,
patent right, license, trademark, trademark right, trade dress, trade name,
trade name right, service mark, copyright or other intellectual property right
of any third party except for any conflict or infringement that, individually or
in the aggregate, would not reasonably be expected to result in a Material
Adverse Change with respect to the Companies taken as a whole. Except as would
not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Change with respect to the Companies taken as a whole, there
are no infringements by any third party of any of the Proprietary Rights owned
by or licensed by or to any of the Companies and no Proprietary Rights of any of
the Companies is the subject of any pending administrative, judicial or other
legal proceeding.
Section 3.11. Title to and Condition of Properties. The Companies
own or lease all real property, plants, machinery and equipment necessary for
the conduct of the Businesses of the Companies as presently conducted, except
where the failure to own or so hold such property, plants, machinery and
equipment would not reasonably be expected to result in a Material Adverse
Change with respect to the Companies taken as a whole.
Section 3.12. Medicare and Medicaid; Reimbursement by Payors;
Related Legislation and Regulations.
3.12.1 For each of the Companies, Section 3.12 of the
Companies' Disclosure Schedule contains a list of those jurisdictions in which
it is licensed under Medicare or Medicaid. The Companies have not received any
notice of investigation, evaluation or suspension of any such licenses, permits,
orders, approvals or authorizations. To the knowledge of the Company and the
Sellers, no suspension or cancellation of any such licenses, permits, orders,
approvals and authorizations has been threatened or is contemplated.
3.12.2 One or more of the Companies participate in the
Medicare and Medicaid Programs (the "Programs"). Section 3.12 of the Companies'
Disclosure Schedule contains a list of all Medicare and Medicaid provider
numbers assigned to the Companies and other documents evidencing such
participation.
3.12.3 Except as set forth in Section 3.12 of the Companies'
Disclosure
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Schedule, the Companies have not received notice of any offsets against future
reimbursements under or pursuant to the Programs. To the knowledge of the
Company and the Sellers, no factual basis for any such offsets exists. Except as
set forth in Section 3.12 of the Companies' Disclosure Schedule, there are no
pending appeals, adjustments, challenges, audits, litigation and notices of
intent to recoup past or present reimbursements with respect to the Programs.
Except as set forth in Section 3.12 of the Companies' Disclosure Schedule , the
Companies have not been subject to, or threatened with, loss or waiver of
liability for utilization review denials with respect to the Programs during the
past 12 months, nor have the Companies received notice of any pending,
threatened or possible decertification, or audit, offset, other action or other
loss of participation in any of the Programs. Except as set forth in Section
3.12 of the Companies' Disclosure Schedule, to the knowledge of the Company and
the Sellers, no validity review or program integrity review related to any of
the Companies has been conducted by any Governmental Authority in connection
with any of the Programs and no such review, audit or audit assessment is
scheduled, pending or threatened against any of the Companies, their businesses
or their assets.
3.12.4 Except as set forth in Section 3.12 of the Companies'
Disclosure Schedule , (i) the Companies have not failed to file cost reports or
other documentation or reports, if any, required to be filed by any commercial
third-party payors or Governmental Authorities in connection with applicable
contractual provisions and/or laws, regulations and rules, and (ii) there are no
Claims (including notices of any offsets against future reimbursements) pending
or, to the knowledge of the Company and the Seller, threatened or scheduled
before any Person, including without limitation any intermediary, carrier, the
Health Care Financing Administration, or any other state or federal agency with
respect to Medicare or Medicaid Claims filed by the Companies, or program
compliance matters, in either case (i.e., clause (i) or clause (ii)) which would
result in a Material Adverse Change with respect to the Companies taken as a
whole. The Companies have delivered to the Purchaser accurate and complete
copies of any Claims, actions, inquiries or other correspondence or appeals
listed in Section 3.12 of the Companies' Disclosure Schedule.
3.12.5 To the knowledge of the Company and the Sellers, (i)
the Companies deliver goods and services, charge rates and bill for services
which are in all material respects legal and proper, (ii) the Companies in all
material respects properly pay any appropriate refunds, bill and use all
reasonable efforts to collect deductibles and co-payment amounts and apply all
payments received, (iii) the Companies have not engaged in any activities in
connection with the Businesses which are prohibited under, and have complied in
all material respects with, the Controlled Substances Act, 21 U.S. C. Section
801 et seq., all legislation relating to the Programs and the regulations
promulgated pursuant to such statutes and any related state or local statutes or
regulations concerning the dispensing and sale of controlled substances and the
provision of healthcare products and service to the general public and (iv) the
Companies have complied in all material respects with all laws and
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regulations pertaining to the return of pharmaceutical products.
Section 3.13. Litigation. Except as set forth in Section 3.13 to
the Companies' Disclosure Schedule, there is no Action pending or, to the
knowledge of the Company or the Sellers, threatened against any of the Companies
or any executive officer or director of the Companies which, individually or in
the aggregate, would reasonably be expected to result in a Material Adverse
Change with respect to the Companies taken as a whole or a material adverse
effect on the ability of the Company and the Sellers to consummate the
transactions contemplated hereby. None of the Companies is subject to any
outstanding order, writ, injunction or decree which, individually or in the
aggregate, insofar as can be reasonably foreseen, would reasonably be expected
to result in a Material Adverse Change with respect to the Companies taken as a
whole or a material adverse effect on the ability of the Company or the Sellers
to consummate the transactions contemplated hereby. Except as set forth in
Section 3.13 to the Companies' Disclosure Schedule, since December 31, 1994,
none of the Companies has been subject to any outstanding order, writ,
injunction or decree relating to the Companies' methods of doing business or the
Companies' relationships with past, existing or future users or purchasers of
any goods or services of any of the Companies. To the knowledge of the Sellers
and the Company, Section 3.13 of the Companies' Disclosure Schedule sets forth
an accurate description of any pending or threatened investigations regarding
the Companies, other than those which, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Change with respect
to the Companies taken as a whole or a material adverse effect on the ability of
the Company and the Sellers to consummate the transactions contemplated hereby.
Section 3.14. Brokerage and Finder's Fees; Expenses. Neither any of
the Companies nor any stockholder, director, officer or employee thereof, has
incurred or will incur on behalf of any of the Companies, any brokerage,
finder's, legal, accounting or similar fee in connection with the transactions
contemplated by this Agreement.
Section 3.15. Financial Statements.
3.15.1 Section 3.15 of the Companies' Disclosure Schedule
contains the following annual and interim consolidated financial statements of
the Companies: the audited consolidated balance sheets of the Companies as of
December 31, 1996 and 1997 and the related audited consolidated statements of
income, changes in stockholders' equity and cash flows of the Companies for the
period from June 23, 1997 through December 31, 1997, the period from January 1,
1997 through June 22, 1997, and the years ended December 31, 1996 and 1995 and
the unaudited consolidated balance sheet of the Companies as of September 30,
1998 (the "Interim Balance Sheet") and the related unaudited consolidated
statements of income and changes in stockholders' equity of the Companies for
the nine month periods ended September 30, 1997 and 1998 (the "Interim Income
and Stockholders' Equity
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Statements"). The audited and unaudited financial statements delivered pursuant
to this Section 3.15.1 are hereinafter referred to as the "Financial
Statements". The Financial Statements fairly present the consolidated financial
condition of the Companies and the consolidated results of the Companies'
operations and cash flows as at the dates and for the periods to which they
apply, as the case may be, and such statements have been prepared in conformity
with GAAP (except as may otherwise be indicated in the notes thereto and except
that certain footnotes required by GAAP and normal year-end adjustments with
respect to interim periods have been omitted). The Financial Statements for all
interim periods include all adjustments (subject only to normal year-end
adjustments) necessary for a fair presentation of the Companies' consolidated
financial position, results of operations and cash flows.
3.15.2 Section 3.15 of the Companies' Disclosure Schedule
sets forth the Companies' policy with respect to the capitalization and
expensing of software, which policy has been adhered to in all material respects
by the Companies for the periods covered by the Financial Statements.
3.15.3 Intentionally omitted.
3.15.4 Intentionally omitted.
3.15.5 No unrecorded funds or assets of the Companies have
been established for any purpose; no accumulation or use of the funds of the
Companies has been made without being properly accounted for in the respective
books and records of the Companies; all payments by or on behalf of the
Companies have been duly and properly recorded and accounted for in the
Companies' books and records; no false or artificial entry has been made in the
books and records of the Companies for any reason; no payment has been made by
or on behalf of the Companies with the understanding that any part of such
payment is to be used for any purpose other than that described in the documents
supporting such payment; and the Companies have not made, directly or
indirectly, any illegal contributions to any political party or candidate,
either domestic or foreign, or any contribution, gift, bribe, rebate, payoff,
influence payment or kickback, whether in cash, property or services, to any
individual, corporation, partnership or other entity, to secure business or to
pay for business secured.
3.15.6 No operations have been discontinued by the Companies
within the last five years other than in the Ordinary Course of Business.
3.15.7 Intentionally omitted.
3.15.8 The Companies do not have any outstanding binding
commitments with respect to capital expenditures other than the commitments
described in Section 3.15 of the Companies' Disclosure Schedule.
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Section 3.16. Employee Benefit Plans.
3.16.1 For purposes of this Section 3.16, the following
terms have the definitions given below:
"Controlled Group Liability" means any and all
liabilities under (i) Title IV of ERISA, (ii) section 302 of ERISA, (iii)
sections 412 and 4971 of the Code, (iv) the continuation coverage requirements
of section 601 et seq. of ERISA and section 4980B of the Code, and (v)
corresponding or similar provisions of foreign laws or regulations, in each case
other than pursuant to the Plans.
"ERISA Affiliate" means, with respect to any entity,
trade or business, any other entity, trade or business that is a member of a
group described in Section 414(b), (c), (m) or (o) of the Code or Section
4001(b)(1) of ERISA that includes the first entity, trade or business, or that
is a member of the same "controlled group" as the first entity, trade or
business pursuant to Section 4001(a)(13) of ERISA.
"Plans" means all "employee welfare benefit plans"
within the meaning of Section 3(1) of ERISA and all "employee pension benefit
plans" within the meaning of Section 3(2) of ERISA sponsored or maintained by
any of the Companies at any time since September 30, 1998 or to which any of the
Companies has contributed or has been obligated to contribute at any time since
September 30, 1998.
"Withdrawal Liability" means liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as those terms are defined in Part I of Subtitle E of Title
IV of ERISA.
3.16.2 With respect to each Plan in effect on the date
hereof, the Company has provided to the Purchaser a true, correct and complete
copy of the following (where applicable): (i) each writing constituting a part
of such Plan, including without limitation all plan documents, trust agreements,
and insurance contracts and other funding vehicles; (ii) the three most recent
Annual Reports (Forms 5500 Series) and accompanying schedules, if any; (iii) the
current summary plan description, if any; (iv) the most recent annual financial
report, if any; and (v) the most recent determination letter from the Internal
Revenue Service, if any.
3.16.3 Except as set forth in Section 3.16(c) to the
Companies' Disclosure Schedule, the Internal Revenue Service has issued a
favorable determination letter with respect to each Plan that is intended to be
a "qualified plan" within the meaning of Section 401(a) of the Code (a
"Qualified Plan") and no circumstance exists nor has any event occurred that
could adversely affect the qualified status of any Qualified Plan or the related
trust in a manner that would result in a Material Adverse Change with respect to
the Companies taken as a whole.
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3.16.4 All contributions required to be made to any Plan by
any applicable laws or by any plan document or other contractual undertaking,
and all premiums due or payable with respect to insurance policies funding any
Plan, before the date hereof have been made or paid in full on or before the
final due date thereof (or, if not made or paid in full, would not result in a
Material Adverse Change with respect to the Companies) and through the Closing
Date will be made or paid in full on or before the final due date thereof.
3.16.5 Each of the Companies has complied, and is now in
compliance, in all material respects, with all provisions of ERISA, the Code and
all laws and regulations applicable to the Plans. Each Plan has been operated in
material compliance with its terms. There is not now, and there are no existing
circumstances that would give rise to, any requirement for the posting of
security with respect to a Plan or the imposition of any lien on the assets of
any of the Companies under ERISA or the Code. No circumstance exists, and no
event has occurred, which could cause the Companies to incur liability, whether
directly or indirectly, through indemnification or otherwise, for any tax or
penalty imposed pursuant to Section 4971, 4972, 4975, 4976, 4977, 4978, 4978B,
4979, 4980 or 4980B of the Code or arising under Sections 502(i) or 502(l) of
ERISA.
3.16.6 Except as set forth in Section 3.16(f) to the
Companies' Disclosure Schedule, no Plan is a "multiemployer plan" within the
meaning of Section 4001(a)(3) of ERISA (a "Multiemployer Plan") or a plan that
has two or more contributing sponsors at least two of whom are not under common
control, within the meaning of Section 4063 of ERISA (a "Multiple Employer
Plan"), nor have any of the Companies or any of their respective ERISA
Affiliates, at any time within six years before the date hereof, contributed to
or been obligated to contribute to any Multiemployer Plan or Multiple Employer
Plan. With respect to each Multiemployer Plan described in Section 3.16(f) to
the Companies' Disclosure Schedule: (i) neither any of the Companies nor any of
their ERISA Affiliates has incurred any Withdrawal Liability that has not been
satisfied in full; and (ii) neither any of the Companies nor any of their ERISA
Affiliates has received any notification, nor has any reason to believe, that
any such plan is in reorganization, is insolvent, has been terminated, or would
be in reorganization, be insolvent, or be terminated. Except for Multiemployer
Plans described in Section 3.16(f) to the Companies' Disclosure Schedule, no
Plan is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of
the Code.
3.16.7 No circumstance exists, and no event has occurred,
that would result in, any material Controlled Group Liability that would be a
liability of any of the Companies following the Closing. Without limiting the
generality of the foregoing, neither any of the Companies nor any of their
respective ERISA Affiliates has engaged in any transaction described in Section
4069 or Section 4203 of ERISA.
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3.16.8 Except for health continuation coverage as required
by Section 4980B of the Code or Part 6 of Title I of ERISA and except as set
forth in Section 3.16(h) to the Companies Disclosure Schedule, none of the
Companies has any material liability for life, health, medical or other welfare
benefits to former employees or beneficiaries or dependents thereof.
3.16.9 Except as disclosed in Section 3.16(i) to the
Companies' Disclosure Schedule, neither the execution and delivery of any of the
Transaction Agreements nor the consummation of the transactions contemplated
hereby or thereby will result in, cause the accelerated vesting or delivery of,
or increase the amount or value of, any payment or benefit to any employee,
officer, director or consultant of any of the Companies. Without limiting the
generality of the foregoing, except as set forth in Section 3.16(i) to the
Companies' Disclosure Schedule, no amount paid or payable by any of the
Companies in connection with the transactions contemplated by the Transaction
Agreements either solely as a result thereof or as a result of such transactions
in conjunction with any other events will be an "excess parachute payment"
within the meaning of Section 280G of the Code.
3.16.10 Except as disclosed in Section 3.16(j) to the
Companies' Disclosure Schedule, there are no pending or, to the knowledge of the
Company or the Sellers, threatened claims (other than claims for benefits in the
Ordinary Course of Business), lawsuits or arbitrations which have been asserted
or instituted against the Plans, any fiduciaries thereof with respect to their
duties to the Plans or the assets of any of the trusts under any of the Plans.
3.16.11 Section 3.16(k) to the Companies' Disclosure Schedule
sets forth a list of each employment, severance or similar agreement under which
any of the Companies is or could become obligated to provide compensation or
benefits in excess of $200,000 in any one calendar year, and the Company has
provided to the Purchaser a copy of each such agreement.
3.17. Contracts. Section 3.17 to the Companies' Disclosure Schedule
lists all contracts, agreements, guarantees, leases and executory commitments
that exist as of the date hereof other than Plans (each a "Contract") to which
any of the Companies is a party and which fall within any of the following
categories: (a) Contracts not entered into in the Ordinary Course of Business
other than those that are not material to the Businesses, (b) joint venture and
partnership agreements, (c) Contracts containing covenants purporting to limit
the freedom of any of the Companies to compete in any line of business in any
geographic area or to hire any individual or group of individuals, (d) Contracts
which after the Closing Date would have the effect of limiting the freedom of
the Purchaser or its subsidiaries to compete in any line of business in any
geographic area or to hire any individual or group of individuals, (e) Contracts
which contain minimum purchase conditions in excess of $1,000,000 with respect
to inventory purchases for resale, and $500,000 in the case of everything else,
or requirements or
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other terms that restrict or limit the purchasing relationships of any of the
Companies, or any customer, licensee or lessee thereof, (f) Contracts relating
to any outstanding commitment for capital expenditures in excess of $250,000,
(g) indentures, mortgages, promissory notes, loan agreements or guarantees of
borrowed money in excess of $1,000,000, letters of credit or other agreements or
instruments of any of the Companies or commitments for the borrowing or the
lending of amounts in excess of $1,000,000 by any of the Companies or providing
for the creation of any charge, security interest, encumbrance or lien upon any
of the assets of any of the Companies with an aggregate value in excess of
$100,000, (h) Contracts providing for "earn-outs" or other contingent payments
by any of the Companies involving more than $100,000 over the term of the
Contract, and (i) Contracts with or for the benefit of any Affiliate of any of
the Companies or immediate family member thereof (other than subsidiaries of the
Company) involving more than $60,000 in the aggregate per Affiliate. All such
Contracts and all contracts to which Companies is a party and which involve
annual revenues to the Businesses of the Companies in excess of 2.5% of the
Companies' consolidated annual revenues (each, a "Material Contract") are valid
and binding obligations of one or more of the Companies and, to the knowledge of
the Company and the Sellers, the valid and binding obligation of each other
party thereto except such Contracts or Material Contracts which if not so valid
and binding would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Change with respect to the Companies taken as a
whole. Neither any of the Companies nor, to the knowledge of the Company or the
Sellers, any other party thereto is in violation of or in default in respect of,
nor has there occurred an event or condition which with the passage of time or
giving of notice (or both) would constitute a default under or permit the
termination of, any such Contract or Material Contract except such violations or
defaults under or terminations which, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Change with respect
to the Companies taken as a whole. Set forth in Section 3.17(j) to the
Companies' Disclosure Schedule is a description of any material changes to the
amount and terms of the indentures of any of the Companies from the descriptions
thereof in the notes to the financial statements previously delivered to the
Purchaser.
3.18. Labor Matters. Except as set forth in Section 3.18 to the
Companies' Disclosure Schedule, none of the Companies has any consulting
agreements providing for compensation of any individual in excess of $150,000
annually, or any labor contracts or collective bargaining agreements with any
persons employed by any of the Companies or any persons otherwise performing
services primarily for any of the Companies. There is no labor strike, dispute
or stoppage pending or, to the knowledge of the Company and the Sellers,
threatened against any of the Companies, and none of the Companies has
experienced any labor strike, dispute or stoppage since December 31, 1996.
3.19. Undisclosed Liabilities. Except (i) as and to the extent
disclosed or reserved against on the Company's consolidated balance sheet as of
September 30,
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1998 previously furnished to the Purchaser, (ii) as incurred after the date
thereof in the Ordinary Course of Business consistent with prior practice and
not prohibited by this Agreement or (iii) as set forth in Section 3.19 to the
Companies' Disclosure Schedule, the Companies do not have any liabilities or
obligations of any nature, whether known or unknown, absolute, accrued,
contingent or otherwise and whether due or to become due, that, individually or
in the aggregate, result or would result in a Material Adverse Change with
respect to the Companies taken as a whole.
3.20. Operation of the Businesses; Relationships.
3.20.1 Since September 30, 1998 through the date of this
Agreement, none of the Companies has engaged in any transaction which, if done
after execution of this Agreement, would violate in any material respect
Sections 6.2 or 6.3 except as set forth in Section 3.20.1 to the Companies'
Disclosure Schedule.
3.20.2 Except as set forth in Section 3.20.2 to the Companies'
Disclosure Schedule, since January 1, 1998 no material customer of any of the
Companies has indicated that it will stop or materially decrease purchasing
materials, products or services from any of the Companies and no material
supplier of any of the Companies has indicated that it will stop or materially
decrease the supply of materials, products or services to any of the Companies,
in each case, the effect of which would result in a Material Adverse Change with
respect to the Companies taken as a whole.
3.21. Permits; Compliance.
3.21.1 Each of the Companies is in possession of all material
franchises, grants, authorizations, licenses, permits, easements, variances,
exemptions, consents, certificates, approvals and orders necessary to own, lease
and operate its properties and to carry on its business as it is now being
conducted (collectively, the "Company Permits"), except where the failure to be
in possession of such Companies Permits would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change with
respect to the Companies taken as a whole or a material adverse effect on the
ability of the parties to consummate the transactions contemplated hereby, and
there is no Action pending or, to the knowledge of the Company and the Sellers,
threatened regarding any of the Company Permits which, if successful, would
result in a Material Adverse Change with respect to the Companies taken as a
whole or a material adverse effect on the ability of the parties to consummate
the transactions contemplated hereby. None of the Companies is in conflict with,
or in default (or would be in default with the giving of notice, the passage of
time, or both) or violation of, any of the Company Permits, except for any such
conflicts, defaults or violations which, individually or in the aggregate, would
not reasonably be expected to result in a Material Adverse Change with respect
to the Companies taken as a whole.
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3.21.2 Except as set forth in Section 3.21.2 of the
Companies' Disclosure Schedule or as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change with
respect to the Companies taken as a whole, none of the Companies or any of their
officers (during the term of such person's employment by any of the Companies)
has made any untrue statement of a material fact or fraudulent statement to any
Governmental Authority or failed to disclose a material fact required to be
disclosed to any Governmental Authority.
Section 3.22. Environmental Matters. Except for matters disclosed
in Schedule 3.22 of the Companies' Disclosure Schedule and except for matters
that would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change with respect to the Companies taken as a
whole, (a) the properties, operations and activities of the Companies are in
compliance with all applicable Environmental Laws and all past noncompliance of
any of the Companies with any Environmental Laws or Environmental Permits that
has been resolved with any Governmental Authority has been resolved without any
pending, ongoing or future obligation, cost or liability; (b) the Companies and
the properties and operations of the Companies are not subject to any existing,
pending or, to the knowledge of the Company and the Sellers, threatened action,
suit, investigation, inquiry or proceeding by or before any court or
governmental authority under any Environmental Law; (c) there has been no
release of any hazardous substance, pollutant or contaminant into the
environment by any of the Companies or in connection with their properties or
operations; (d) to the best of the knowledge of the Company and the Sellers,
there has been no exposure of any person or property to any hazardous substance,
pollutant or contaminant in connection with the properties, operations and
activities of the Companies; and (e) the Companies have made available to the
Purchaser all internal and external environmental audits and reports (in each
case relevant to the Companies) prepared since January 1, 1994 and in the
possession of any of the Companies. The term "Environmental Laws" means all
federal, state, local or foreign laws relating to pollution or protection of
human health or the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata), including,
without limitation, laws relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, or industrial, toxic
or hazardous substances or wastes (collectively, "Hazardous Materials") into the
environment, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands or demand letters,
injunctions, judgments, licenses, notices or notice letters, orders, permits,
plans or regulations issued, entered, promulgated or approved thereunder, as in
effect on the date hereof. "Environmental Permit" means any permit, approval,
identification number, license or other authorization required under or issued
pursuant to any applicable Environmental Law.
Sections 3.23. Intentionally omitted.
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Section 3.24 Year 2000. The Companies have taken the steps
described in Section 3.24 with respect to the Companies' computer systems and
software relating to the specification of dates in, into and between the 20th
and 21st centuries.
3.25. Anti-takeover Laws; Support Agreements. Prior to the date
hereof, the Boards of Directors of the Company and the Sellers have taken all
action necessary to exempt under or make not subject to any takeover or other
law that purports to limit or restrict business combinations: (i) the execution
of this Agreement and the support agreements dated as of the date hereof between
the Purchaser and the Persons identified in Section 3.25 of the Companies'
Disclosure Schedule (the "Support Agreements")and (ii) the transactions
contemplated hereby and by the other Transaction Agreements. Copies of the
Support Agreements executed by the Persons identified in Section 3.25 of the
Companies' Disclosure Schedule have been delivered to the Purchaser. Section
3.25 of the Companies' Disclosure Schedule sets forth the number of shares of
the Canadian Seller's capital stock beneficially owned by each Person named
therein.
Section 3.26. Accounts Receivable and Inventories.
3.26.1 All accounts and notes receivable of the Companies
have arisen in the Ordinary Course of Business and the accounts receivable
reserve reflected in the Company's consolidated balance sheet as of September
30, 1998 previously furnished to the Purchaser was established in accordance
with GAAP.
3.26.2 The Companies' assets which are inventories have a
net realizable value on September 30, 1998 at least equal to the FIFO value at
which such inventories are carried on the Company's consolidated balance sheet
as of September 30, 1998 previously furnished to the Purchaser; and have been
purchased by the Companies directly from the manufacturer thereof or from an
authorized distributor of such products in accordance with the Federal
Prescription Drug Marketing Act, if applicable.
Section 3.27. Insurance. Section 3.27 to the Companies' Disclosure
Schedule sets forth a list of the policies of fire, theft, liability and other
insurance maintained with respect to the assets or businesses of the Companies
(copies of all of which policies have been previously provided to the
Purchaser), which policies have terms expiring as set forth in Section 3.27 to
the Companies' Disclosure Schedule.
Section 3.28. Employee Agreements; Option Cancellation Agreements.
Each of the employees of the Companies specified in Section 3.28 to the
Companies' Disclosure Schedule has duly executed and delivered an employment
agreement or an amendment to an existing employment agreement with the Company
(the "Employee Agreements"), and such Employee Agreements have not been amended
or terminated. The Designated Optionees other than Gordon Vanscoy have executed
Designated
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Optionee Option Cancellation Agreements and such Option Cancellation Agreements
have not been amended or terminated. The Company has previously provided to the
Purchaser copies of all such Employee Agreements and Designated Optionee Option
Cancellation Agreements.
Section 3.29. Director Compensation. Section 3.29 to the Companies'
Disclosure Schedule sets forth a list and a brief summary of the material terms
of all plans, programs, agreements, arrangements or understandings of the
Companies under which any director of any of the Companies may be entitled to
payment or compensation from any of the Companies (i) in connection with or as a
result of any of the transactions contemplated by this Agreement or (ii) after
the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES REGARDING THE SELLERS
The Sellers jointly and severally represent and warrant to the
Purchaser as follows:
Section 4.1 Organization and Qualification of the Sellers. The
Canadian Seller is a corporation duly organized, validly existing and in good
standing under the laws of the Province of Ontario, with full power and
authority, corporate and other, to own or lease its property and assets and to
carry on its business as presently conducted. The US Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
state of Delaware, with full power and authority, corporate and other, to own or
lease its property and assets and to carry on its business as presently
conducted.
Section 4.2 Corporate Power and Authority. Each of the Sellers
has all requisite corporate power and authority to enter into and deliver the
Transaction Agreements, to perform its obligations hereunder and thereunder and
to consummate the transactions contemplated hereby and thereby, subject to
approval of the sale of the Stadtlander Shares contemplated hereby by the
shareholders of the Canadian Seller. The execution and delivery of the
Transaction Agreements by each of the Sellers have been duly authorized by all
necessary corporate action on the part of each of the Sellers, subject to
approval of the sale of the Stadtlander Shares contemplated hereby by the
shareholders of the Canadian Seller. This Agreement has been duly executed and
delivered by the Sellers and constitutes the legal, valid and binding obligation
of the Sellers enforceable against the Sellers in accordance with its terms,
except insofar as its enforcement may be limited by (a) bankruptcy, insolvency,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and (b) equitable principles limiting the availability of equitable
remedies. All persons who executed this Agreement on behalf of the Sellers have
been duly authorized to do so. Prior to the date hereof,
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the Sellers have taken all actions, if any, necessary to exempt under or make
not subject to any takeover or other law that purports to limit or restrict
business combinations: (i) the execution of this Agreement and the Support
Agreements and (ii) the consummation of the transactions contemplated hereby and
by the Support Agreements.
Section 4.3 Conflicts; Consents and Approvals. Neither the execution
and delivery of this Agreement or any of the other Transaction Agreements, nor
the consummation of the transactions contemplated hereby or thereby, will:
4.3.1 conflict with, or result in a breach of any provision of,
the certificate of incorporation, bylaws or other organizational document of the
Sellers;
4.3.2 violate, or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which, with the giving of
notice, the passage of time or otherwise, would constitute a default) under, or
entitle any party (with the giving of notice, the passage of time or otherwise)
to terminate, accelerate, modify or call a default under, or result in the
creation of any lien, security interest, charge or encumbrance upon any of the
properties or assets of either of the Sellers under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed of trust,
license, contract, undertaking, agreement, lease or other instrument or
obligation to which either of the Sellers is a party except to the extent waived
in writing by the other party thereto;
4.3.3 violate any order, writ, injunction, decree, statute, rule
or regulation applicable to either of the Sellers or any of their respective
properties or assets; or
4.3.4 require any action or consent or approval of, or review by,
or registration or filing by the Sellers or any of their affiliates with, any
third party or any Governmental Authority, other than (i) approval of the sale
of the Stadtlander Shares contemplated hereby by the shareholders of the
Canadian Seller, (ii) actions required by the HSR Act, (iii) registrations or
other actions required under Canadian, federal and state securities laws as are
contemplated by this Agreement and (iv) consents or approvals of any
Governmental Authority set forth in Section 4.3 to the Companies' Disclosure
Schedule;
except in the case of Sections 4.3.2, 4.3.3 and 4.3.4 for any of the foregoing
that would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change with respect to the Sellers taken as a whole
or a material adverse effect on the ability of the parties hereto to consummate
the transactions contemplated hereby.
Section 4.4 Indemnification. Section 4.4 of the Companies' Disclosure
Schedule describes (a) all indemnification agreements or arrangements extended
to either of the
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Sellers with respect to any aspect of the Businesses or the Companies and (b)
all agreements, arrangements, documents and instruments that expand, reduce,
terminate or otherwise modify any such indemnification agreements or
arrangements.
Section 4.5 Ownership of Shares.
4.5.1 The Sellers own all of the outstanding shares of
Stadtlander Common Stock beneficially and of record. At the Closing, the Sellers
will own all of the outstanding shares of Stadtlander Common Stock free and
clear of any security interests, liens, encumbrances, claims or restrictions of
any kind. There are no voting trust arrangements, shareholder agreements or
other agreements (i) granting any option, warrant or right of first refusal with
respect to the Stadtlander Shares to any Person, (ii) restricting the right of
the Sellers to sell the Stadtlander Shares to the Purchaser, or (iii)
restricting any other right of the Sellers with respect to the Stadtlander
Shares. The Sellers have the absolute and unrestricted right, power and capacity
to sell, assign and transfer the Stadtlander Shares to the Purchaser free and
clear of any security interests, liens, encumbrances, claims or restrictions of
any kind (except for restrictions imposed generally by applicable securities
laws). Upon delivery to the Purchaser of the certificates representing the
Stadtlander Shares at the Closing in exchange for the consideration to be
delivered by the Purchaser at the Closing, the Purchaser will acquire good,
valid and marketable title to the Stadtlander Shares, free and clear of any
Encumbrances of any kind (except for restrictions created by the Purchaser and
restrictions imposed generally by applicable securities laws).
4.5.2 The Canadian Seller owns 6,994,315 PharMerica Shares
beneficially and of record, and as of the Closing will own such shares free and
clear of any security interests, liens, encumbrances, claims or restrictions of
any kind and Counsel Healthcare Assets, Inc., the only subsidiary of the
Canadian Seller that owns any PharMerica Shares, owns 825,00 PharMerica Shares
beneficially and of record, and as of the Closing will own such shares free and
clear of any security interests, liens, encumbrances, claims or restrictions of
any kind . Except as contemplated by the Transaction Agreements, there are no
voting trust arrangements, shareholder agreements or other agreements (i)
granting any option, warrant, right to vote or right of first refusal with
respect to such PharMerica Shares to any Person, (ii) restricting the right of
the Canadian Seller or its subsidiaries to execute, deliver and perform the
Transaction Documents, or (iii) restricting any other right of the Canadian
Seller or its subsidiaries with respect to the PharMerica Shares. The Canadian
Seller and its subsidiaries have the absolute and unrestricted right, power and
capacity to confer upon the Purchaser, pursuant to this Agreement, the rights of
the Purchaser under the Voting Trust Agreement and the Proxy and the right to
vote the PharMerica Shares to the extent provided for therein and herein.
Section 4.6 Brokers. With the exception of Donaldson, Lufkin &
Jenrette, CIBC Oppenheimer Corporation and CIBC Wood Gundy Toronto, no Person is
or will be
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entitled to a broker's, finder's, investment banker's, financial adviser's or
similar fee from either of the Sellers in connection with this Agreement or any
of the transactions contemplated hereby. Except as set forth in Section 10.2,
the fees and expenses of Donaldson, Lufkin & Jenrette, CIBC Oppenheimer
Corporation and CIBC Wood Gundy Toronto are the sole responsibility of, and
shall be paid by, the Sellers.
Section 4.7 Securities and Related Matters.
4.7.1 The Sellers have received copies of the following
documents:
(1) Beach's Annual Report on Form 10-K for the year ended
September 30, 1997, as amended;
(2) Beach's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1997, March 31, 1998 and June 30, 1998;
(3) Beach's Current Reports on Form 8-K dated March 16,
1998 and August 7, 1998;
(4) Beach's proxy statement for its 1998 annual meeting of
shareowners; and
(5) Beach's press releases dated August 7, 1998, September
1, 1998, September 24, 1998, October 2, 1998 and October 7, 1998.
4.7.2 Intentionally omitted
4.7.3 The Sellers acknowledge that the BBC Shares are being
acquired by the Sellers for investment purposes and not for purposed of resale
other than pursuant to the Registration Statement.
4.7.4 The Sellers understand that after the Closing, unless the
BBC Shares are sold pursuant to the Registration Statement, the BBC Shares must
be held indefinitely unless a subsequent disposition thereof is registered under
the Act and under all applicable securities laws of other jurisdictions or is
exempt from such registration requirements in the opinion of counsel reasonably
acceptable to the Purchaser, it being agreed that Harwell Howard Hyne Gabbert &
Manner, P.C. is acceptable to the Purchaser. The Sellers agree that they will
not sell, transfer, pledge or otherwise dispose of the BBC Shares unless such
transaction is registered under the Act or such transaction is exempt from such
registration in the opinion of counsel reasonably satisfactory to the Purchaser.
4.7.5 None of the information included in the Information
Circular, at the time that the Information Circular becomes effective, at the
date of mailing of the
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Information Circular and at the date of the Canadian Seller's Shareholders'
Meeting to be held to consider the transactions contemplated hereby, will
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Information Circular will comply as to form in all material
respects with the provisions of all applicable laws and regulations.
4.8. Intentionally omitted.
4.9. Board Recommendation. The Board of Directors of the Canadian
Seller has, by written consent signed by all of the Canadian Seller's directors
(who constituted 100% of the directors then in office), (i) determined that this
Agreement and the transactions contemplated hereby are fair to and in the best
interests of the Canadian Seller's shareholders and (ii) resolved to recommend
that the Canadian Seller's shareholders approve the sale of the Stadtlander
Shares contemplated hereby (the "Canadian Seller's Board Recommendation").
ARTICLE V
REPRESENTATIONS AND WARRANTIES REGARDING THE PURCHASER
The Purchaser represents and warrants to the Sellers and the Company as
follows:
Section 5.1 Organization and Standing. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
state of New Jersey with full power and authority (corporate and other) to own,
lease, use and operate its properties and to conduct its business as and where
now owned, leased, used, operated and conducted. The Purchaser is duly licensed
or qualified to do business and is in good standing in each jurisdiction in
which the nature of the business conducted by it or the property it owns, leases
or operates, makes such qualification necessary, except where the failure to be
so qualified or in good standing in such jurisdiction would not result in a
Material Adverse Change with respect to the Purchaser and its subsidiaries,
taken as a whole. The copies of the Restated Certificate of Incorporation and
by-laws of the Purchaser previously provided to the Sellers' counsel are true,
correct and complete copies of such documents as in effect as of the date of
this Agreement.
Section 5.2 Corporate Power and Authority. The Purchaser has all
requisite corporate power and authority to enter into the Transaction Agreements
and to consummate the transactions contemplated by the Transaction Agreements.
The execution and delivery of the Transaction Agreements and the consummation of
the
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transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of the Purchaser. No other corporate
proceedings on the part of the Purchaser are necessary to consummate the
transactions contemplated by the Transaction Agreements. Each of the Transaction
Agreements has been (or, in the case of agreements to be executed at the
Closing, will be) duly executed and delivered by the Purchaser, and constitutes
(or, in the case of agreements to be executed at the Closing, will constitute)
the legal, valid and binding obligation of the Purchaser enforceable against the
Purchaser in accordance with its terms, except insofar as its enforcement may be
limited by (a) bankruptcy, insolvency, moratorium or similar laws affecting the
enforcement of creditors' rights generally and (b) equitable principles limiting
the availability of equitable remedies. All persons who executed this Agreement
on behalf of the Purchaser have been duly authorized to do so.
Section 5.3 Capitalization of the Purchaser. As of September 30, 1998,
the Purchaser's outstanding capital stock consisted solely of shares of BBC
Common Stock, of which 51,441,165 shares were issued and outstanding. As of
September 30, 1998, 2,594,472 shares of BBC Common Stock were reserved for
issuance upon the exercise or conversion of outstanding options, warrants or
convertible securities granted or issuable by the Purchaser. Each outstanding
share of BBC Common Stock is, and all shares of BBC Common Stock to be issued in
connection with the transactions contemplated hereby will be, duly authorized
and validly issued, fully paid and nonassessable, with no personal liability
attaching to the ownership thereof, and each outstanding share of BBC Common
Stock has not been, and all shares of BBC Common Stock to be issued in
connection with the transactions contemplated hereby will not be, subject to or
issued in violation of any preemptive or similar rights. As of September 30,
1998, except as set forth above or in the "BBC SEC Documents" (as defined
herein) and except for shares issuable in connection with business acquisitions,
the Purchaser did not have and was not bound by any outstanding subscriptions,
options, warrants, calls, commitments or agreements of any character calling for
the purchase or issuance of any shares of BBC Common Stock or BBC Preferred
Stock or any other equity securities of the Purchaser or any securities
representing the right to purchase or otherwise receive any shares of BBC Common
Stock or BBC Preferred Stock.
Section 5.4 Conflicts; Consents and Approvals. Except as set forth in
Section 5.4 to the disclosure schedule delivered by the Purchaser to the Sellers
and dated the date hereof (the "Purchaser's Disclosure Schedule"), neither the
execution and delivery of the Transaction Agreements by the Purchaser nor the
consummation of the transactions contemplated hereby or thereby will:
5.4.1 conflict with, or result in a breach of any provision of,
the Purchaser's restated certificate of incorporation or by-laws, as amended;
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5.4.2 violate, or conflict with, or result in a breach of any
provision of, or constitute a default (or an event which, with the giving of
notice, the passage of time or otherwise, would constitute a default) under, or
entitle any party (with the giving of notice, the passage of time or otherwise)
to terminate, accelerate, modify or call a default under, or result in the
creation of any lien, security interest, charge or encumbrance upon any of the
properties or assets of the Purchaser or any of its subsidiaries under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture, deed
of trust, license, contract, undertaking, agreement, lease or other instrument
or obligation to which the Purchaser or any of its subsidiaries is a party;
5.4.3 violate any order, writ, injunction, decree, statute, rule
or regulation applicable to the Purchaser or any of its subsidiaries or their
respective properties or assets; or
5.4.4 require any action or consent or approval of, or review by,
or registration or filing by the Purchaser or any of its Affiliates with, any
third party or any Governmental Authority, other than (i) registrations or other
actions required under federal and state securities laws as are contemplated by
this Agreement, or (ii) as required by the HSR Act,
except, in the case of Sections 5.4.2, 5.4.3 and 5.4.4, for any of the foregoing
that would not, individually or in the aggregate, have a material adverse effect
on the consolidated financial condition or consolidated results of operations of
the Purchaser or upon the ability of the parties to consummate the transactions
contemplated hereby.
Section 5.5 Brokers. With the exception of Lehman Brothers, no Person
is or will be entitled to a broker's, finder's, investment banker's, financial
adviser's or similar fee from the Purchaser in connection with this Agreement or
any of the transactions contemplated hereby. The fees and expenses of Lehman
Brothers are the sole responsibility of, and shall be paid by, the Purchaser.
Section 5.6 BBC SEC Documents and Other Public Disclosures.
5.6.1 The Purchaser has timely filed with the SEC all forms,
reports, schedules, statements and other documents required to be filed by it
since September 1, 1996 under the Exchange Act (such documents, as supplemented
and amended since the time of filing, collectively, the "BBC SEC Documents").
The BBC SEC Documents, including, without limitation, any financial statements
or schedules included therein, at the time filed (a) did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, and (b) complied
in all material respects with the applicable requirements of the Exchange Act.
The Purchaser has previously provided to the
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Sellers" counsel true, correct and complete copies of the BBC SEC Documents. The
financial statements of the Purchaser included in the BBC SEC Documents at the
time filed complied as to form in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto, were prepared in accordance with generally accepted
accounting principles applied on a consistent basis during the periods involved
(except as may be indicated in the notes thereto or, in the case of unaudited
statements, as permitted by Form 10-Q of the SEC), and fairly present (subject,
in the case of unaudited statements, to normal, recurring audit adjustments) the
consolidated financial position of the Purchaser and its consolidated
subsidiaries as at the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended.
5.6.2 Since December 31, 1997, except for events publicly
disclosed by the Purchaser prior to the date hereof, there has been no change in
the assets, liabilities, results of operations or financial condition of the
Purchaser and its Subsidiaries which would constitute a Material Adverse Change
with respect to the Purchaser and its Subsidiaries taken as a whole or any
event, occurrence or development which would have a material adverse effect on
the ability of the Purchaser to consummate the transactions contemplated hereby.
ARTICLE VI
COVENANTS AND AGREEMENTS
Section 6.1 Access and Information. Prior to the Closing, the Purchaser
shall be entitled to make or cause to be made such investigation of the
Companies, and the financial and legal condition thereof, as the Purchaser deems
necessary or advisable, and the Company and the Sellers shall cooperate with any
such investigation. In furtherance of the foregoing, but not in limitation
thereof, the Company shall (a) permit the Purchaser and its agents and
representatives or cause them to be permitted to have full and complete access
to the premises, operating systems, computer systems (hardware and software) and
books and records of the Companies upon reasonable notice during regular
business hours, (b) furnish or cause to be furnished to the Purchaser such
financial and operating data, projections, forecasts, business plans, strategic
plans and other data relating to the Companies and the Businesses as the
Purchaser shall request from time to time and (c) cause the Accountants to
furnish to the Purchaser and its accountants access to all work papers relating
to any of the periods covered by the Financial Statements. Prior to the Closing,
the Purchaser shall not use any information provided to it in confidence for any
purpose unrelated to the Transaction Agreements. The Sellers and the Company
shall not use any information provided to them in confidence by the Purchaser
for any purposes unrelated to the
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Transaction Agreements. Except with respect to publicly available documents, in
the event that this Agreement is terminated, (a) the Purchaser will deliver to
the Company all documents obtained by it from the Companies or the Sellers in
confidence and any copies thereof in the possession of the Purchaser or its
agents and representatives or, at the option of the Purchaser, the Purchaser
shall cause all of such documents and all of such copies to be destroyed and
shall certify the destruction thereof to the Company and the Sellers and (b) the
Sellers and the Company will deliver to the Purchaser all documents obtained by
them from the Purchaser in confidence and any copies thereof in the possession
of the Company and/or either of the Sellers or their agents and representatives
or, at the option of the Company and the Sellers, the Company and the Sellers
shall cause all of such documents and all of such copies to be destroyed and
shall certify the destruction thereof to the Purchaser.
No investigation by the Purchaser heretofore or hereafter made shall
modify or otherwise affect (a) any representations and warranties of the Company
or the Sellers made pursuant to this Agreement, which shall survive any such
investigation, or (b) the conditions to the obligation of the Purchaser to
consummate the transactions contemplated hereby, provided that the Purchaser
shall promptly notify the Sellers in writing of any facts and circumstances of
which it obtains knowledge prior to the Closing that indicate that any such
representations and warranties are inaccurate in any material respect (except
for any representation and warranty which is qualified hereunder as to
materiality, as to which such notification shall be given if the Purchaser
obtains knowledge that such representation and warranty is inaccurate in any
respect); failure to comply with this notification obligation with respect to
particular facts and circumstances shall preclude the Purchaser from relying
upon such facts and circumstances in bringing any action hereunder for
indemnification.
Section 6.2 Affirmative Covenants. Prior to the Closing, except as
otherwise expressly provided herein, the Company shall (and the Company shall
cause each of its Subsidiaries to):
6.2.1 conduct its business only in the ordinary and regular
course of business consistent with past practices;
6.2.2 use its best efforts to keep in full force and effect its
corporate existence and all material rights, franchises, Proprietary Rights and
goodwill relating or obtaining to the Businesses;
6.2.3 endeavor to retain its employees and preserve its present
relationships with customers, suppliers, contractors, distributors, correctional
facilities and employees, and continue to compensate its employees consistent
with past practices;
6.2.4 use its best efforts to maintain the Proprietary Rights so
as not to
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affect adversely the validity or enforcement thereof; maintain its other assets
in customary repair, order and condition and maintain insurance reasonably
comparable to that in effect on the date of this Agreement; and in the event of
any casualty, loss or damage to any of its assets repair or replace such assets
with assets of comparable quality;
6.2.5 maintain its books, accounts and records in accordance with
GAAP;
6.2.6 use its best efforts to obtain all authorizations,
consents, waivers, approvals or other actions and to make all filings and
applications necessary or desirable to consummate the transactions contemplated
hereby and to cause the other conditions to the Purchaser's obligation to close
to be satisfied; and
6.2.7 promptly notify the Purchaser in writing if, prior to the
consummation of the Closing, to its knowledge any of the representations and
warranties contained in Article III or Article IV cease to be accurate and
complete in all material respects (except for any representation and warranty
which is qualified hereunder as to materiality, as to which such notification
shall be given if the Company or its subsidiaries obtain knowledge that such
representation and warranty is inaccurate in any respect).
Section 6.3 Negative Covenants. Prior to the Closing, without the prior
written consent of the Purchaser (which, in the case of (x) a Limited Size
Acquisition or (y) a restructuring of indebtedness among the Companies which
would not affect the calculation of the Net Debt or Net Worth of the Companies,
shall not be unreasonably withheld) or as otherwise expressly provided herein,
the Company will not, the Company will cause the Subsidiaries not to, and the
Sellers will not:
6.3.1 take any action or omit to take any action which would
result in any of the Companies' (a) incurring any trade accounts payable outside
of the Ordinary Course of Business or making any commitment to purchase
quantities of any item of inventory in excess of quantities normally purchased
by any of the Companies in the Ordinary Course of Business; (b) increasing any
of the Companies' indebtedness for borrowed money except in the Ordinary Course
of Business; (c) guaranteeing the obligations of any Person other than Companies
which are wholly-owned, directly or indirectly, by the Company, (d) making any
purchases of Gray Goods; (e) merging or consolidating with, purchasing
substantially all of the assets of, or otherwise acquiring any business or any
proprietorship, firm, association, limited liability company, corporation or
other business organization; (f) increasing or decreasing the rate of
compensation of or paying any unusual compensation to any officer, employee or
consultant of any of the Companies (other than regularly scheduled increases in
base salary and annual bonuses consistent with prior practice); (g) entering
into or amending any collective bargaining agreement, or creating or modifying
any pension or profit-sharing plan, bonus, deferred compensation, death benefit,
or retirement plan, or any
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other employee benefit plan, or increasing the level of benefits under any such
plan, or increasing or decreasing any severance or termination pay benefit or
any other fringe benefit; (h) making any representation to anyone indicating any
intention of the Purchaser to retain, institute, or provide any employee benefit
plans; (i) declaring or paying any dividend or making any distribution with
respect to, or purchasing or redeeming, shares of the capital stock of the
Company; (j) selling or disposing of any assets otherwise than in the Ordinary
Course of Business of the Companies; (k) making any capital expenditures other
than those disclosed in Section 3.15 of the Companies' Disclosure Schedule; (l)
issuing any shares of the capital stock of any kind of any of the Companies,
transferring from the treasury of any of the Companies any shares of the capital
stock of any of the Companies or issuing or granting any subscriptions, options,
rights, warrants, convertible securities or other agreements or commitments to
issue, or contracts or any other agreements obligating any of the Companies to
issue, or to transfer from treasury, any shares of capital stock of any class or
kind, or securities convertible into any such shares; (m) agreeing to any
amendment or modification of any of the Employee Agreements; (n) agreeing to do
any of the foregoing; or (o) entering into any other transaction outside of the
Ordinary Course of Business;
6.3.2 enter into any contract, agreement or commitment or take
any other action which, if entered into or taken prior to the date of this
Agreement, (i) would cause any representation or warranty herein of the Company
or the Sellers to be untrue or (ii) would be required to be disclosed in one or
more sections of the Companies' Disclosure Schedule;
6.3.3 incur or create any Encumbrance on the Stadtlander Shares;
6.3.4 except as contemplated herein, take any action or omit to
take any action which would prejudice the Purchaser's rights to consummate each
of the transactions contemplated by this Agreement or to compel performance of
each of the obligations of the Company and the Sellers under this Agreement;
6.3.5 take or omit to be taken any action, or permit its
Affiliates to take or to omit to take any action, which could reasonably be
expected to result in a Material Adverse Change with respect to the Companies;
6.3.6 take any action or omit to be taken any action, or permit
its Affiliates to take or to omit to take any action, which would result in (a)
the disposition, assignment or any other transfer of ownership by Stadtlander
U.S.A., Inc. of any intangible asset (including any trade name, trademark or
goodwill) or (b) any modification of any licensing agreement with respect to any
such intangible asset; or
6.3.7 agree or commit to take any action precluded by this
Section 6.3.
Section 6.4 Closing Documents. The Company and the Sellers shall, prior
to or
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on the Closing Date, execute and deliver, or cause to be executed and delivered
to the Purchaser, the documents or instruments described in Section 7.2. The
Purchaser shall, prior to or on the Closing Date, execute and deliver, or cause
to be executed and delivered, to the Sellers, the documents or instruments
described in Section 7.3.
Section 6.5 Transfer and Other Taxes.
6.5.1 The Sellers shall pay any stamp, stock transfer, sales,
purchase, use or similar Tax under the laws of any Governmental Authority
arising out of or resulting from the purchase of the Stadtlander Shares. The
Sellers shall prepare and file the required Tax returns and other required
documents with respect to the Taxes and fees required to be paid by them
pursuant to the preceding sentence and shall promptly provide the Purchaser with
evidence of the payment of such Taxes and fees.
6.5.2 The US Seller shall include the income of the Companies
(including any deferred income triggered into income by Treas. Reg.
ss.ss.1.1502-13 or any predecessor regulation and any excess loss accounts taken
into income under Treas. Reg. ss.ss.1.1502-19) on the US Seller's consolidated
federal income Tax returns for all periods through the Closing Date and pay any
federal income taxes attributable to such income. The Companies shall furnish
Tax information to the US Seller for inclusion in the US Seller's consolidated
federal income tax return and state and local income or franchise tax returns
for the period which includes the Closing Date in accordance with the Companies'
past custom and practice. The US Seller shall allow the Purchaser an opportunity
to review and comment upon such Tax returns (including any amended returns) to
the extent that they relate to the Companies and would adversely affect the
Purchaser or the Companies after the Closing Date. The income of the Companies
shall be apportioned to the period up to and including the Closing Date and the
period after the Closing Date by closing the books of the Companies as of the
close of business on the Closing Date. Notwithstanding the foregoing,
information which is subject to a confidentiality agreement shall not be
released except to the extent required by law.
6.5.3 Any Tax sharing agreement between any of the Sellers (or
any Affiliate of any of the Sellers) and any of the Companies shall be
terminated as of the Closing Date and shall have no further effect for any
taxable year (whether the current year, a future year or a past year). At or
before the Closing, the Sellers shall provide to the Purchaser evidence of such
termination, in form satisfactory to the Purchaser.
6.5.4 The US Seller shall allow the Purchaser and its counsel to
participate in any audits of the US Seller's consolidated federal income tax
returns to the extent that such returns relate to the Companies. The US Seller
shall not settle any such audit in a manner that would adversely affect the
Companies after the Closing Date without the Purchaser's prior written consent,
which consent shall not be unreasonably withheld.
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6.5.5 The US Seller shall immediately pay to the Purchaser any
Tax refund (or reduction in Tax liability) resulting from a carryback of a
post-acquisition Tax attribute of any of the Companies into the US Seller's
consolidated Tax return, when such refund or reduction is realized by the US
Seller's group. The US Seller shall cooperate with the Companies in obtaining
any such refund (or reduction in Tax liability), including through the filing of
amended Tax returns or refund claims. The Purchaser agrees to indemnify the US
Seller for any Taxes resulting from the disallowance of such post-acquisition
Tax attribute on audit or otherwise.
6.5.6 The US Seller will not elect to retain any net operating
loss carryovers or capital loss carryovers of the Companies under Treas. Reg.
ss.1.1502-20(g).
6.5.7 Prior to the Closing, the Canadian Seller shall furnish the
Purchaser with a statement issued by the Company pursuant to Treas. Reg.
ss.1.897-2(h) by which statement the Company certifies that the Stadtlander
Shares are not United States real property interests within the meaning of
Section 897(c) of the Code.
Section 6.6 Non-Competition and Confidentiality Agreement. For a period
of five years after the Closing Date, the Sellers will not, and the Sellers will
cause their Subsidiaries (other than Subsidiaries that are not at least
majority-owned) not to, (a) directly or indirectly, anywhere within the United
States, engage in a Competitive Business or (b) without the written consent of
the Purchaser, directly or indirectly employ, engage, contract for or solicit
the services in any capacity of any Person (other than Allan Silber, Morris
Perlis or James Sas) who is employed by any of the Companies on the date hereof,
unless the employment of such Person is terminated by the Purchaser prior to any
solicitation of employment or employment; or (c) use for its own benefit or
divulge or convey to any third party, any Confidential Information (as
hereinafter defined) relating to any of the Companies. For purposes of this
Agreement, the Sellers shall not be deemed to have violated clause (a) of this
Section 6.6 in the event that (i) the Sellers or their Affiliates acquire the
capital stock or a substantial portion of the assets of a Person whose revenues
during its last fiscal year attributable to a Competitive Business represent (x)
less than $50,000,000 and (y) less than twenty five percent (25%) of such
Person's aggregate revenues, (ii) the Sellers promptly offer to sell such
Competitive Business to the Purchaser on commercially reasonable terms at a
price that is either agreed upon by the Sellers and the Purchaser or is
determined by a valuation firm mutually acceptable to the Sellers and the
Purchaser to represent the fair market value of such Competitive Business and
(iii) if the Purchaser does not accept such offer, the Sellers dispose of the
Competitive Business promptly, but in no event more than twelve months after the
acquisition of the Competitive Business by the Sellers. For purposes of this
Agreement, the Sellers shall not be deemed to have violated clause (a) of this
Section 6.6 by virtue of their combined ownership (together with the ownership
of their Subsidiaries) of (x) less than five percent (5%) of the issued
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and outstanding stock of a publicly held corporation, (y) the shares of the
capital stock of PharMerica or (z) shares of the capital stock of American Home
Patient Inc., a Delaware corporation. For purposes of this Agreement,
"Confidential Information" consists of all information, knowledge or data
relating to any of the Companies including, without limitation, customer and
supplier lists, formulae, trade know-how, processes, secrets, consultant
contracts, pricing information, marketing plans, product development plans,
business acquisition plans and all other information relating to the operation
of the Companies not in the public domain or otherwise publicly available which
are or were treated as confidential by the Companies. Information which enters
the public domain or is publicly available loses its confidential status
hereunder so long as neither the Sellers nor its Affiliates directly or
indirectly cause such information to enter the public domain.
The Sellers acknowledge that the restrictions contained in this Section
6.6 are reasonable and necessary to protect the legitimate interests of the
Purchaser and that any breach by the Sellers of any provision of this Section
6.6 will result in irreparable injury to the Purchaser. The Sellers acknowledge
that, in addition to all remedies available at law, the Purchaser shall be
entitled to equitable relief, including injunctive relief, and an equitable
accounting of all earnings, profits or other benefits arising from any such
breach and shall be entitled to receive such other damages, direct or
consequential, as may be appropriate. The Purchaser shall not be required to
post any bond or other security in connection with any proceeding to enforce
this Section 6.6.
Section 6.7 Reasonable Efforts; Further Assurances. Subject to the
terms and conditions herein provided, each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things reasonably necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. Each of the Company, the Sellers
and the Purchaser will use all reasonable efforts to obtain consents of all
Governmental Authorities and third parties necessary to the consummation of the
transactions contemplated by this Agreement. In the event that at any time after
Closing any further action is necessary to carry out the purposes of this
Agreement or to obtain any licenses required, necessary or advisable in
connection with the operation of any of the Businesses, the Sellers or the
Purchaser, as the case may be, shall take all such action without any further
consideration therefor.
Section 6.8 Third Party Proposals.
6.8.1 Each of the Company, the U.S. Seller and the Canadian
Seller agrees that, during the term of this Agreement, it shall not, and shall
not authorize or permit any of its subsidiaries or any of its or its
subsidiaries' directors, officers, employees, agents or representatives to,
directly or indirectly, solicit, initiate, encourage or facilitate, or furnish
or disclose non-public information in furtherance of, any inquiries or the
making of any proposal with respect to any recapitalization, merger,
consolidation
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or other business combination involving the Companies, or acquisition of any
capital stock from the Companies or any assets of the Companies in a transaction
outside of the Ordinary Course of Business, or any acquisition by any of the
Companies of any material assets or capital stock of any other person or any
combination of the foregoing (a "Competing Transaction"), or negotiate, explore
or otherwise engage in discussions with any person (other than the Purchaser, a
wholly-owned subsidiary of the Purchaser or their respective directors,
officers, employees, agents and representatives) with respect to any Competing
Transaction or enter into any agreement, arrangement or understanding requiring
it to terminate this Agreement or abandon, terminate or fail to consummate the
Closing or any other transactions contemplated by this Agreement; provided that,
at any time prior to the approval of the sale of the Stadtlander Shares by the
shareholders of the Canadian Seller, the Canadian Seller may furnish information
to, and negotiate or otherwise engage in discussions with, any party who
delivers a written proposal for a Competing Transaction which was not solicited
or encouraged after the date of this Agreement if and so long as the Board of
Directors of the Canadian Seller determines in good faith by a majority vote,
after consultation with and receipt of advice from its outside legal counsel,
that failing to take such action would be inconsistent with the fiduciary duties
of the Board of Directors of the Canadian Seller under applicable laws and
determines that such a proposal is, after consulting with Donaldson, Lufkin and
Jenrette (or any other nationally recognized investment banking firm), more
favorable to the Canadian Seller's shareholders from a financial point of view
than the transactions contemplated by this Agreement (including any adjustment
to the terms and conditions proposed by the Purchaser in response to such
Competing Transaction). The Company and the Sellers will immediately cease all
existing activities, discussions and negotiations with any parties conducted
heretofore with respect to any proposal for a Competing Transaction.
Notwithstanding any other provision of this Section 6.8.1, in the event that,
prior to the approval of the sale of the Stadtlander Shares to the Purchaser by
the shareholders of the Canadian Seller, the Board of Directors of the Canadian
Seller determines in good faith by a majority vote, after consultation with and
receipt of advice from outside legal counsel, that failure to do so would be
inconsistent with the fiduciary duties of the Canadian Seller's Board of
Directors, the Board of Directors of the Canadian Seller may (subject to this
and the following sentences) withdraw, modify or change, in a manner adverse to
the Purchaser, its recommendation in favor of the transactions contemplated
hereby, provided that it uses all reasonable efforts to give the Purchaser two
calendar days prior written notice of its intention to do so (provided that the
foregoing shall in no way limit or otherwise affect the Purchaser's right to
terminate this Agreement pursuant to Section 8.1.14). The Canadian Seller's
Board of Directors shall not, in connection with any such withdrawal,
modification or change of its recommendation with respect to the transactions
contemplated hereby, take any action to change the approval of the Board of
Directors of the Canadian Seller for purposes of causing any takeover statute or
other law to be inapplicable to the transactions contemplated hereby, including
the Closing or the performance of the Support Agreements. From and after the
execution of this Agreement, the Company and the Sellers shall immediately
advise the Purchaser in
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writing of the receipt, directly or indirectly, of any inquiries, discussions,
negotiations, or proposals relating to a Competing Transaction (including the
specific terms thereof and the identity of the other party or parties involved)
and furnish to the Purchaser within 24 hours of such receipt an accurate
description of all material terms (including any changes or adjustments to such
terms as a result of negotiations or otherwise) of any such written proposal in
addition to any information provided to any third party relating thereto. In
addition, the Company and the Sellers shall immediately advise the Purchaser, in
writing, if the Board of Directors of the Canadian Seller shall make any
determination as to any Competing Transaction as contemplated by the proviso to
the first sentence of this Section 6.8.1.
6.8.2 If, prior to the approval of the sale of the Stadtlander
Shares to the Purchaser by the shareholders of the Canadian Seller, the Board of
Directors of the Canadian Seller shall determine in good faith, after
consultation with its financial and legal advisors, with respect to any written
proposal from a third party for a Competing Transaction received after the date
hereof that was not solicited or encouraged by the Canadian Seller or any of its
subsidiaries or Affiliates in violation of this Agreement, that failure to enter
into such Competing Transaction would be inconsistent with the fiduciary duties
of the Board of Directors of the Canadian Seller and that such Competing
Transaction is more favorable to the shareholders of the Canadian Seller from a
financial point of view than the transactions contemplated by this Agreement
(including any adjustment to the terms and conditions of such transaction
proposed in writing by the Purchaser in response to such Competing Transaction)
and is in the best interest of the Canadian Seller's shareholders and the
Canadian Seller has received (x) the advice of its outside legal counsel as to
whether failure to enter into such a Competing Transaction would be inconsistent
with a breach of the Board of Directors' fiduciary duties and (y) advice from
Donaldson, Lufkin & Jenrette (or any other nationally recognized investment
banking firm) that the Competing Transaction is more favorable from a financial
point of view to the Canadian Seller's shareholders than the transactions
contemplated by this Agreement (including any adjustment to the terms and
conditions of such transaction proposed in writing by the Purchaser), the
Canadian Seller may terminate this Agreement and enter into a letter of intent,
agreement-in-principle, acquisition agreement or other similar agreement (each,
an "Acquisition Agreement") with respect to such Competing Transaction provided
that, prior to any such termination, (i) the Canadian Seller has provided the
Purchaser with written notice that it intends to terminate this Agreement
pursuant to this Section 6.8.2, identifying the Competing Transaction then
determined to be more favorable and the parties thereto and delivering an
accurate description of all material terms (including any changes or adjustments
to such terms as a result of negotiations or otherwise) of the Acquisition
Agreement to be entered into for such Competing Transaction, and (ii) at least
three full Business Days after the Canadian Seller has provided the notice
referred to in clause (i) above (provided that the advice referred to in clauses
(x) and (y) above shall continue in effect without revocation, revision or
modification), the Canadian Seller, as a condition to termination, delivers to
the Purchaser (A) a written notice of termination of
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this Agreement pursuant to this Section 6.8.2 and (B) a certified or bank
cashier's check in the amount of twelve million dollars ($12,000,000).
Section 6.9 Tax Election. The US Seller shall join with the Purchaser
in making an election under Sections 338(g) and 338(h)(10) of the Code (and any
corresponding elections under state, local or foreign tax law) (collectively, a
"338(h)(10) Election") with respect to the purchase and sale of the Stadtlander
Shares hereunder.
6.9.1 The Purchaser shall determine the allocation of the Net
Purchase Price and the liabilities of the Companies (plus other relevant items)
to the assets of the Companies and shall furnish to the US Seller a schedule
(the "Allocation Schedule") setting forth that allocation. Neither the Purchaser
nor the US Seller shall take any action or any position that is inconsistent
with the Allocation Schedule on any Tax return or in any administrative or
judicial proceeding.
6.9.2 The Purchaser and the US Seller shall on a timely basis
file all forms required under federal, state, local or foreign law to effect the
338(h)(10) Election (including IRS Form 8023), which forms shall be prepared
consistently with the Allocation Schedule.
6.9.3 At the Closing, the Purchaser shall pay to the US Seller
the sum of twenty eight million dollars ($28,000,000) as consideration for the
US Seller's joining with the Purchaser in making the 338(h)(10) Election.
6.9.4 Notwithstanding any other provisions of this Section 6.9,
the US Seller will be responsible for paying any Taxes attributable to the
making of the 338(h)(10) Election and the Sellers will indemnify and hold
harmless the Purchaser and the Companies against any costs arising out of any
failure to pay such Taxes.
Section 6.10 Hart-Scott-Rodino Filings. Each of the Purchaser, the
Company and the Sellers will use all reasonable efforts to file with the
Antitrust Division of the Department of Justice (the "Antitrust Division") and
the Federal Trade Commission (the "FTC") within five Business Days after the
date hereof the notification and report form (the "Report") required under the
HSR Act with respect to the transactions contemplated hereby. Each of the
Company, the Sellers and the Purchaser shall cooperate with each other to the
extent necessary to assist each other in the preparation of its Report, shall
request early termination of the waiting period required by the HSR Act and, if
requested, will promptly amend or furnish additional information thereunder if
requested by the Antitrust Division and/or the FTC.
Section 6.11 Notification by the Purchaser. The Purchaser shall
promptly inform the Sellers in writing if, prior to the consummation of the
Closing, any of the representations and warranties contained in Article V cease
to be accurate and complete.
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Section 6.12 Agreements. At the Closing, the Purchaser and the Canadian
Seller shall (and shall cause its subsidiaries to) execute and deliver the
Voting Trust Agreement and make all deliveries required thereunder and the
Canadian Seller shall (and shall cause its subsidiaries to) execute and deliver
the Proxy and the Back-Up Option Agreement.
Section 6.13 Company Options.
6.13.1 The following terms shall have the following meanings:
6.13.1.1 "Total Price" means (a) $300,000,000 plus (b) the
aggregate amount of cash payable to the Company upon the exercise in full of all
Stock Options outstanding immediately prior to the consummation of the Closing
plus (c) the amount, if any, by which the Certified Net Debt is less than
$100,000,000 plus (d) the Stock Appreciation Figure minus (e) the amount, if
any, by which the Certified Net Debt is greater than $100,000,000. For purposes
of this Agreement, the term "Stock Appreciation Figure" shall mean 3,022,670
(representing $150,000,000 divided by $49.625) multiplied by the extent, if any,
by which the Market Value exceeds $49.625; provided, however, that such $49.625
amount, the Market Value and such 3,022,670 number shall be equitably adjusted
hereunder as necessary to reflect the Stock Split if, on the date that any
determination of Market Value is made hereunder, the last sale price, quoted
regular way, of the BBC Common Stock reflects the Stock Split. It is understood
that the Stock Appreciation Figure shall be zero in the event that the Market
Value (as equitably adjusted for the Stock Split) is less than or equal to
$49.625 (as equitably adjusted for the Stock Split).
6.13.1.2 "Fully Diluted Number" means the sum of (i) the
aggregate number of shares of Stadtlander Common Stock outstanding on the
Closing Date plus (ii) the aggregate number of shares of Stadtlander Common
Stock covered by subscriptions, options, rights, warrants, convertible
securities or other agreements or commitments to issue, or contracts or any
other agreements obligating the Company to issue, or to transfer from treasury,
any shares of Stadtlander Common Stock, or securities convertible into any such
shares, which options, warrants or other rights are outstanding immediately
prior to the consummation of the Closing.
6.13.1.3 "Share Price" means the "Total Price" divided by the
Fully Diluted Number.
6.13.1.4 "Stock Option" means an option to purchase one or more
shares of Stadtlander Common Stock pursuant to the Company's 1996 Incentive and
Non-qualified Stock Option Plan for Key Personnel and Directors or pursuant to
any other plan or agreement approved by the Board of Directors of the Company;
provided, however, that the exercise price of such option is the same for each
share of
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Stadtlander Common Stock covered thereby. Accordingly, a Person who owns stock
options to purchase Stadtlander Common Stock at more than one exercise price
shall be deemed to own one Stock Option for each separate exercise price.
6.13.1.5 "Optionee" shall mean each Person who owns one or more
Stock Options immediately prior to the Closing. "Designated Optionee" shall mean
each of Allan Silber, Morris Perlis, James Sas and Gordon Vanscoy.
"Non-Designated Optionee" shall mean each Optionee other than the Designated
Optionees.
6.13.1.6 "Aggregate Appreciation" for an Optionee means, for each
Stock Option held by such Optionee immediately prior to the Closing, (a) the
amount by which the Share Price exceeds the exercise price of such Stock Option,
multiplied by (b) the number of shares of Stadtlander Common Stock covered by
such Stock Option.
6.13.2 Prior to the Closing, the Company shall enter into
Designated Optionee Option Cancellation Agreements with each of the Designated
Optionees and Non-Designated Optionee Option Cancellation Agreements with each
of the Non-Designated Optionees. Each of the Option Cancellation Agreements
shall provide that (a) concurrent with the Closing, the Company shall pay to the
applicable Optionee, in cash, a dollar amount equal to such Optionee's Aggregate
Appreciation for each of such Optionee's Stock Options and (b) upon receipt of
such payment, all of such Designated Optionee's Stock Options shall be canceled.
Section 6.14 Retained Employees. It is understood that on and after the
Closing, Allan Silber, Morris Perlis and James Sas (the "Retained Employees")
shall cease to be employees of the Companies and shall become, or continue to
be, employees of the Sellers. The Sellers agree that, subject to the terms of
the Transitional Consulting Agreements, the Sellers shall assume, and shall
indemnify the Companies against, all liabilities arising after the Closing with
respect to the post-Closing employment of the Retained Employees, including
without limitation all liabilities arising under any employment agreement or
employment benefit plan applicable to any of the Retained Employees. Concurrent
with the execution of this Agreement, the Purchaser and the Retained Employees
have entered into transitional consulting agreements in the form and substance
of the agreements annexed hereto as Appendix 6.14 (the "Transitional Consulting
Agreements"). For the first thirty (30) days after the Closing, the Sellers
shall make James Sas available to the Companies as a consultant on an as
requested basis for up to fifty percent (50%) of James Sas' work week. For the
next one hundred and fifty (150) days thereafter, the Sellers shall make James
Sas available to the Companies on an as requested basis for up to twenty percent
(20%) of James Sas' work week. The Purchaser shall cause the Company to
reimburse the Sellers for work performed by James Sas at the Company's request
at a rate of $130 per hour. In the performance of such work, James Sas shall be
employed as an employee of one or both of the Sellers and shall be designated by
the Sellers to provide
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consulting services to the Purchaser in accordance with this Section 6.14.
Section 6.15 PharMerica Shares. The Canadian Seller agrees as follows
with respect to the PharMerica Shares that it and its subsidiaries now or may
hereinafter beneficially own or otherwise hold (the "Subject PharMerica
Shares"):
6.15.1 Without the prior written consent of the Purchaser, until
December 31, 1999, the Canadian Seller will not (and will not permit its
subsidiaries to), directly or indirectly, offer, sell, pledge (other than the
pledge existing on the date hereof, which pledge does not preclude the Canadian
Seller or its Subsidiaries from voting any Subject PharMerica Shares), transfer,
contract to sell, grant any option to purchase or otherwise dispose of any
Subject PharMerica Shares or any securities convertible into, derivative of or
exercisable or exchangeable for any Subject PharMerica Shares, provided,
however, that this Section 6.15.1 shall not prohibit the Canadian Seller from
distributing Subject PharMerica Shares to its shareholders as a dividend at any
time after December 25, 1999 and shall not prohibit the Canadian Seller or its
subsidiaries from selling the Subject PharMerica Shares pursuant to Section
6.15.2 at any time. At or prior to the Closing, the Canadian Seller shall (and
shall cause each of its subsidiaries that then owns PharMerica Shares to) use
its best efforts to cause the stock certificates representing the Subject
PharMerica Shares to be legended, in a manner reasonably satisfactory to the
Purchaser, to reflect the restrictions set forth in this Section 6.15.
6.15.2 In the event that the Canadian Seller or any of its
subsidiaries receives, and desires to accept, a Bona Fide Offer from a
third-party (an "Offeror") to purchase for consideration any of the Subject
PharMerica Shares, the Canadian Seller will (or will cause its subsidiaries to)
promptly deliver to the Purchaser written notice of the intended disposition
(the "Disposition Notice") and the basic terms and conditions of the proposed
disposition, including the identity of the Offeror. The Purchaser will have the
right, exercisable upon written notice to the Canadian Seller within ten (10)
Business Days after receipt of the Disposition Notice, to purchase the Subject
PharMerica Shares covered by such Bona Fide Offer on the same terms and
conditions as those set forth in the Disposition Notice. The Canadian Seller
will not (and will cause its subsidiaries not to) sell any of such Subject
PharMerica Shares to the Offeror unless and until either (i) the Purchaser
notifies the Canadian Seller (or its subsidiaries, if applicable) that the
Purchaser does not intend to meet the terms set forth in the Disposition Notice
or (ii) the Purchaser fails to advise the Canadian Seller (or its subsidiaries,
if applicable) in writing, prior to the expiration of such ten (10) Business Day
period, that the Purchaser agrees to purchase such Subject PharMerica Shares on
the terms set forth in the Disposition Notice. In the event that the Purchaser
advises the Canadian Seller (or its subsidiaries, if applicable) of such
agreement within such ten (10) Business Day period, the Canadian Seller will (or
will cause its subsidiaries to) sell to the Purchaser, and the Purchaser will
purchase from the Canadian Seller (or its subsidiaries, if applicable), the
Subject PharMerica Shares covered by the Bona Fide
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Offer upon the terms and conditions set forth in the Disposition Notice at a
closing to be held on the later of (x) the fifth Business Day after the Canadian
Seller's (or its subsidiaries', if applicable) receipt of notice of acceptance
from the Purchaser or (y) the second Business Day after the parties to such
closing shall have received all regulatory approvals necessary to consummate
such closing. If the Purchaser does not elect to purchase such Subject
PharMerica Shares, the Canadian Seller (or its subsidiaries, if applicable) will
be permitted to sell such Subject PharMerica Shares to the Offeror upon the
terms and conditions set forth in the Disposition Notice. If such sale is not
consummated within 120 calendar days of the mailing of the original Disposition
Notice, the procedures of this paragraph shall be followed again. For purposes
of this Agreement, the term "Bona Fide Offer" shall mean a bona fide offer to
acquire some or all of the Subject PharMerica Shares, provided that (x) the
Offeror is not an Affiliate of the Canadian Seller, (b) if the offer is a cash
offer, such offer is fully financed, (c) if the offer is not a cash offer, it is
an offer of marketable securities having a readily ascertainable market and (d)
the offer is not subject to any conditions other than conditions, if any,
imposed pursuant to the HSR Act. The provisions of this Section 6.15.2 shall
cease to apply on the sooner of (x) December 31, 1999 and (y) the first date on
which the Canadian Seller and its subsidiaries, having complied with this
Section 6.15, no longer beneficially own or otherwise hold any Subject
PharMerica Shares.
6.15.3 In the event that the shareholders of PharMerica are
asked to vote (either by vote, solicitation of proxies, solicitation of consents
or otherwise) with respect to a PharMerica Business Combination involving
PharMerica at any time prior to December 31, 2001, the Canadian Seller shall
(and shall cause its subsidiaries to) (a) notify the Purchaser that such vote is
being conducted promptly after the Canadian Seller is advised that such vote is
to be taken and (b) vote all of the Subject PharMerica Shares then owned by the
Canadian Seller in accordance with the Purchaser's written instructions if the
Purchaser provides the Canadian Seller and such subsidiaries with such
instructions prior to the date of the meeting of Party's shareholders or the
date three (3) Business Days prior to the last date on which consents may be
submitted. The provisions of this Section 6.15.3 shall terminate as to Subject
PharMerica Shares transferred or distributed in accordance with Sections 6.15.1
or 6.15.2 upon such transfer or distribution.
Section 6.16 Environmental Matters. Prior to the Closing, the Purchaser
shall have the right, at its expense, to make such environmental studies of each
of the premises at which the Companies perform the Businesses (the "Premises"),
including reviewing records, inspecting the properties and testing the air,
subsoil, groundwater and building materials at the Premises, as it shall deem
necessary to determine whether the Premises are in compliance with all
applicable Environmental Laws and whether any Regulated Substances are present
at the Premises, but shall indemnify and hold the Companies harmless from any
loss, cost or damage proximately caused by such inspection. Such inspection
shall be scheduled and performed so as not to
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unreasonably interfere with the Companies' business.
Section 6.17 Canadian Seller's Shareholders' Meeting.
6.17.1 The Canadian Seller shall take all action in accordance
with all applicable laws necessary to convene a special meeting of the
shareholders of the Canadian Seller (the "Canadian Sellers' Shareholders
Meeting") to be held on the earliest practical date after the date hereof and
use its best efforts to obtain the consent and approval of the Canadian Seller's
shareholders with respect to the sale of the Stadtlander Common Stock pursuant
to this Agreement, including recommending approval of such sale.
6.17.2 The Canadian Seller shall, as soon as is reasonably
practicable, prepare an information circular in accordance with all applicable
laws and regulations pertaining thereto (the "Information Circular") for review
by the Purchaser. Subject to the consent of the Purchaser (which shall not be
unreasonably withheld), the Canadian Seller shall prepare and file the
Information Circular with the requisite Canadian regulatory authorities as soon
as is reasonably practicable following receipt of comments from the Purchaser's
representatives and shall use all reasonable efforts to have the Information
Circular declared effective by the requisite Canadian regulatory authorities or
otherwise comply with all prerequisites to delivery of the Information Circular
to the Canadian Seller's shareholders and shall use all reasonable efforts to
comply with all applicable legal requirements with respect to the Information
Circular through the date of the Canadian Sellers' Shareholders Meeting. If, at
any time prior to the date of such meeting, the Canadian Seller shall obtain
knowledge of any information contained in or omitted from the Information
Circular that would require an amendment or supplement to the Information
Circular, the Canadian Seller will so advise the Purchaser in writing and will
promptly take such action, if any, as shall be required by law to amend or
supplement the Information Circular. Such Information Circular shall include the
Canadian Seller's Board Recommendation. The Canadian Seller also shall take such
other reasonable actions (other than qualifying to do business in any
jurisdiction in which it is not so qualified) required to be taken under any
jurisdiction's securities laws in connection with the Canadian Seller's
Shareholders Meeting.
Section 6.18 Payment of Certain Debt. Subsequent to the Closing, the
Purchaser shall cause the Companies to pay the debt of the Companies included
within the Net Debt as of the Closing Date, except that any such debt secured by
any assets of the Companies shall be paid contemporaneously with the Closing.
Pursuant to such obligation, the Purchaser shall cause the Company to pay,
contemporaneously with the Closing (to the extent that the debt is secured by
any assets of the Companies) or as soon as practicable after the Closing Date,
any such indebtedness owed by the Company to the Canadian Seller and, subject to
the next sentence hereof, any such indebtedness owed by the Company to any
financial institution ("Bank Debt").
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Notwithstanding the foregoing, in the event that at least three Business Days
prior to the Closing, (a) the Canadian Seller advises the Purchaser that such
payment of any portion of the Bank Debt will result in the payment of
prepayment, breakage or other similar fees (which fees will be included as
liabilities in determining the Net Worth as of the Closing Date pursuant to
Section 2.5.3 if paid by any of the Companies), (b) the Canadian Seller advises
the Purchaser that the Canadian Seller is willing to assume all of the
Companies' obligations with respect to such portion of the Bank Debt upon
payment by the Company to the Canadian Seller of an amount equal to the
aggregate dollar amount of such obligations (limited to principal and interest
through the date of payment) as of the Closing Date (the "Fee-Related Bank
Debt") and (c) the lender of the Fee-Related Bank Debt provides the Company with
documentation, in form and substance satisfactory to the Purchaser, to the
effect that upon payment of the Fee-Related Bank Debt by the Company to the
Canadian Seller, (i) the Companies will be discharged from any and all liability
with respect to the Fee-Related Bank Debt (including, without limitation, any
obligation to pay any principal, interest or premium with respect to the
Fee-Related Bank Debt and any obligation to pay any prepayment, breakage or
similar fee) and (ii) such lender will release all liens, encumbrances and
security interests securing the payment of such Fee-Related Bank Debt with
respect to any assets or other property of the Companies, then, in lieu of
causing the Company to repay the Fee-Related Bank Debt, the Purchaser shall
cause the Company, contemporaneous with the Closing, to pay to the Canadian
Seller an amount equal to the Fee-Related Bank Debt, provided that at the time
of such payment the Companies shall receive such discharges and releases as the
Purchaser and the Company shall reasonably request. Any debt paid
contemporaneously with the Closing pursuant to this Section 6.18 and any amount
paid to the Canadian Seller contemporaneous with the Closing pursuant to this
Section 6.18 shall be deemed to be part of the Net Debt of the Companies as of
the Closing Date for purposes of Article II and shall be liabilities of the
Companies for purposes of determining the Net Worth as of the Closing Date,
notwithstanding any provision herein to the contrary.
Section 6.19 Pharmaceutical Supply Agreement and Shared Services
Agreement. The Canadian Seller has proposed that the Purchaser enter into a
pharmaceutical supply agreement and a shared services agreement, independent of
the terms of this Agreement. The Purchaser acknowledges receipt of drafts of
such agreements and agrees that it will negotiate such agreements in good faith,
such negotiations to commence as promptly as practicable after the date hereof.
The parties hereto acknowledge that execution of one or both of such agreements
is not a condition to any party's obligations hereunder.
Section 6.20 Access to Prepare the Proposed Statement and to Review
Other Documents. Subsequent to the Closing, the Purchaser shall cause the
Companies to grant to the Sellers' representatives access to the premises, books
and records of the Companies upon reasonable notice during regular business
hours for the purpose of enabling the Sellers to prepare the Proposed Statement
and of enabling the Sellers to
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perform their responsibilities and exercise their rights under Section 2.5. The
Sellers shall not use any information obtained pursuant to this Section 6.1 for
any purpose unrelated to the matters referred to in Section 2.5. Such
information shall constitute "Confidential Information" subject to the
limitations provided for in Section 6.6.
Section 6.21 Assignment of Rights. At the Closing, the Sellers shall
execute a non-exclusive assignment (the "Assignment"), in the form and substance
of the assignment annexed hereto as Appendix 6.21, pursuant to which the Sellers
shall assign on a non-exclusive basis to the Purchaser all of the rights of
indemnification that the Sellers have received from third-parties with respect
to the Companies, including without limitation the rights of indemnification, if
any, granted to the Sellers with respect to the proceedings described in Section
3.13 of the Companies' Disclosure Schedule, to the extent that the Sellers have
the right to effect such assignments. At the Purchaser's request, the Sellers
will use commercially reasonable efforts to obtain any necessary consents to
such assignments.
Section 6.22 Audited Financial Statements.
6.22.1 As promptly as practicable after the execution of this
Agreement and, in all events, prior to the Closing, the Sellers shall provide to
the Purchaser an audited consolidated balance sheet of the Companies as of
September 30, 1998 (the "Interim Audited Balance Sheet") and audited
consolidated statements of income, cash flows and changes in shareholders'
equity of the Companies for the nine months ended September 30, 1998, together
with an unqualified report thereon of the Accountants which report is in form
and substance satisfactory to the Purchaser. Such financial statements (the
"Interim Audited Financial Statements") shall be prepared in accordance with
GAAP, consistently applied, and shall conform to all provisions of the SEC's
Regulation S-X, such that the Interim Audited Financial Statements are suitable
for filing by the Purchaser with the SEC in response to Items 2 and 7 of the
SEC's Current Report on Form 8-K.
6.22.2 At the Closing, the Sellers shall cause the Accountants to
deliver to the Purchaser an executed consent, in form and substance satisfactory
to the Purchaser and suitable for filing by the Purchaser with the SEC, which
consent shall authorize the Purchaser to file with the SEC the report referred
to in Section 6.22.1 and all reports delivered by the Accountants with respect
to the Financial Statements included within Section 3.15 of the Companies'
Disclosure Schedule.
6.22.3 Upon the Purchaser's request, contemporaneous with the
delivery of the Interim Audited Financial Statements pursuant to Section 6.22.1,
the Sellers shall cause the Accountants to make available to the Purchaser and
its representatives the work papers generated in connection with the
Accountants' audit of the Interim Audited Financial Statements.
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6.22.4 In the event that (i) the Purchaser disputes any aspect of
the Interim Audited Financial Statements on the basis that, in any respect, the
Interim Audited Financial Statements were not prepared in accordance with GAAP,
consistently applied, (ii) the Purchaser notifies the Sellers of such dispute or
disputes within fourteen (14) calendar days after the Purchaser's receipt of
such financial statements and (iii) the Purchaser and the Sellers are unable to
resolve such dispute or disputes within seven (7) calendar days after the
Purchaser delivers such notice to the Sellers, the Purchaser shall have the
right to refer such dispute or disputes to an independent accounting firm
mutually acceptable to the Purchaser and the Sellers (the "Audit Firm"). In the
event of such a referral, the Purchaser, the Sellers and the Company shall
cooperate with the Audit Firm in providing the Audit Firm with such information
as the Audit Firm shall reasonably request for purposes of resolving such
disputed items. The conclusions of the Audit Firm shall be binding upon the
parties hereto with respect to (a) any claims that may be made hereunder with
respect to the representations made by the Company and the Sellers regarding the
Interim Balance Sheet and the Interim Income, Stockholders' Equity and Cash Flow
Statements and (b) the calculation of the Net Worth as of September 30, 1998. In
the event that any such dispute or disputes is or are referred by the Purchaser
to the Audit Firm, (a) the Closing shall not be held prior to the fifth Business
Day after the Audit Firm has delivered to the parties hereto its written report
with respect to the items in dispute and (b) the Outside Date shall be extended
by the number of calendar days that elapse from the date of such referral to the
sixth Business Day after such delivery has been made. The Sellers shall pay the
fees of its accountants, including without limitation the Accountants, and the
Purchaser shall pay the fees of the CPA to the extent that the CPA is involved,
in connection with the preparation and review of the Interim Audited Financial
Statements. The fees and disbursements of any Audit Firm retained pursuant to
the provisions of this Section 6.22 shall be borne one-half by the Purchaser and
one-half by the Sellers.
6.22.5 For purposes of this Agreement, the term "September 30 Net
Worth" shall mean (x) the Net Worth reflected in the Interim Audited Balance
Sheet in the event that the Purchaser does not provide the notice referred to in
clause (ii) of Section 6.22.4, (y) the Net Worth as of September 30, 1998 that
the Purchaser and the Sellers shall agree upon in writing in the event that the
Purchaser provides the notice referred to in clause (ii) of Section 6.22.4 but
such agreement of the Purchaser and the Sellers is reached prior to the
resolution of any disputed matters by the Audit Firm pursuant to this Section
6.22 and (z) the Net Worth as of September 30, 1998 as determined by the Audit
Firm (which firm shall determine such Net Worth by combining its conclusions
with respect to all matters in dispute with the conclusions of the Sellers and
the Purchaser with respect to all matters not in dispute) in the event that the
Purchaser provides the notice referred to in clause (ii) of Section 6.22.4 and
the Purchaser and the Sellers are unable to agree upon the disputed matters
prior to the resolution of any disputed matters by the Audit Firm.
Section 6.23 Waiver The Purchaser waives compliance by the
Sellers with all
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applicable bulk sales laws.
ARTICLE VII
CONDITIONS TO CLOSING
Section 7.1 Mutual Conditions The respective obligations of each party
to consummate the transactions contemplated by this Agreement shall be subject
to the fulfillment at or prior to Closing of the following conditions:
7.1.1 No Governmental Authority of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order which is in effect or
commenced any action or proceeding, which in either case would prohibit
consummation of the transactions contemplated by this Agreement or would
threaten the imposition of material damages upon consummation of such
transactions.
7.1.2 The waiting period required by the HSR Act, and any
extensions thereof obtained by request or other action of the FTC and/or the
Antitrust Division, shall have expired or been terminated by the FTC and the
Antitrust Division.
7.1.3 The shareholders of the Canadian Seller shall have approved
the sale of the Stadtlander Shares contemplated hereby.
7.1.4 No third-party shall have instituted any suit or proceeding
against any party hereto to restrain, enjoin or otherwise prevent the
consummation of the transactions contemplated hereby, or to seek damages from or
impose obligations upon any party hereto by reason of the transactions
contemplated hereby, which, in such party's reasonable judgment, would involve
expense or lapse of time that would be materially adverse to such party's
interest.
7.1.5 The BBC Shares required to be delivered by the Purchaser at
the Closing shall have been approved for listing on the New York Stock Exchange,
subject to official notice of issuance.
Section 7.2 Conditions to the Purchaser's Obligations. The obligations
of the Purchaser to consummate the transactions contemplated by this Agreement
shall be subject to the fulfillment prior to or at Closing of each of the
following conditions:
7.2.1 The representations and warranties of the Company and the
Sellers set forth in Article III and IV shall be true and correct in all
material respects (other than representations and warranties which are qualified
as to materiality, which representations and warranties shall be true in all
respects) on the date hereof and on and as of the Closing Date as though made on
and as of the Closing Date (except for
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representations and warranties made as of a specified date, which shall be
measured only as of such specified date).
7.2.2 Each of the US Seller, the Canadian Seller and the Company
shall have performed in all material respects each obligation and agreement and
shall have complied in all material respects with each covenant to be performed
and complied with by it under the Transaction Agreements at or prior to the
Closing.
7.2.3 During the period from September 30, 1998 through the
Closing Date, there shall not have been any Material Adverse Change affecting
the Companies taken as a whole, nor any loss or damage to the assets of the
Companies, whether or not insured, which materially affects the Companies'
ability to conduct the Businesses. The Purchaser shall have received a
certificate (executed by the President or any Vice President of the Company to
such officer's best knowledge), dated the Closing Date, to the foregoing effect
and to the further effect that any liabilities of the Companies at the Closing
Date which were not reflected on the Interim Balance Sheet are either (a)
liabilities incurred in the Ordinary Course of Business subsequent to the date
of that Interim Balance Sheet, (b) liabilities contemplated by this Agreement or
(c) liabilities which are not required by GAAP to be disclosed in a balance
sheet or the notes thereto.
7.2.4 (i) All authorizations, consents, waivers, approvals or
other actions required in connection with the execution, delivery and
performance of this Agreement by the Company and the Sellers and the
consummation by the Company and the Sellers of the transactions contemplated
hereby shall have been obtained and shall be in full force and effect; (ii) the
Company and the Sellers shall have obtained any authorizations, consents,
waivers, approvals or other actions required to prevent a material breach or
default by any of the Companies under any contract to which any of the Companies
is a party or for the continuation of any agreement to which any of the
Companies is a party; and (iii) all authorizations, consents, waivers, approvals
or other actions necessary to permit the Purchaser to own the Stadtlander Shares
shall have been obtained and shall be in full force and effect.
7.2.5 Prior to or at the Closing, (i) the Sellers shall have
delivered to the Company for cancellation the certificates representing the
Stadtlander Shares free and clear of any and all liens, claims or encumbrances,
together with duly endorsed stock powers transferring the Stadtlander Shares to
the Purchaser, (ii) the Company shall have canceled such certificates, and (iii)
the Company shall have issued to the Purchaser new certificates representing the
Stadtlander Shares registered in the name of the Purchaser or as otherwise
directed by the Purchaser. Prior to or at the Closing, the Canadian Seller and
each subsidiary of the Canadian Seller that own PharMerica Shares shall have
executed and delivered to the Purchaser the Voting Trust Agreement (and the
Canadian Seller and such subsidiaries shall have made all deliveries required
thereunder), the Proxy and the Back-Up Option Agreement. The Transitional
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Consulting Agreements shall remain in full force and effect.
7.2.6 Each of the Employee Agreements and each of the Option
Cancellation Agreements executed by the Optionees shall remain in full force and
effect and shall not have been amended without the Purchaser's consent at any
time between the date hereof and the Closing Date.
7.2.7 Prior to or at the Closing, the Sellers and the Company
shall have delivered such other closing documents as shall be reasonably
requested by the Purchaser in form and substance acceptable to the Purchaser's
counsel (which acceptance shall not be unreasonably withheld), including the
following:
(i) a certificate of the President or a Vice
President of each of the US Seller, the Canadian Seller and the
Company, dated the Closing Date, to the effect that (1) the person
signing such certificate is familiar with this Agreement and (2) to the
best of such person's knowledge, the conditions specified in Section
7.2.1, 7.2.2, 7.2.3 and 7.2.4 have been satisfied;
(ii) a certificate of the Secretary or Assistant
Secretary of each of the US Seller, the Canadian Seller and the
Company, dated the Closing Date, as to the incumbency of any officer of
such entity executing this Agreement or any document related hereto and
covering such other matters as the Purchaser may reasonably request;
(iii) a certified copy of (1) the Certificate of
Incorporation and by-laws of the Company and all amendments thereto and
(2) the resolutions of the Company's Board of Directors authorizing the
execution, delivery and consummation of this Agreement and the
transactions contemplated hereby;
(iv) a certified copy of (1) the Certificate of
Incorporation and by-laws of the US Seller and all amendments thereto
and (2) the resolutions of the US Seller's Board of Directors
authorizing the execution, delivery and consummation of this Agreement,
the Assignment and the transactions contemplated hereby and thereby;
(v) a certified copy of (1) the organizational
documents of the Canadian Seller and all amendments thereto and (2) the
resolutions of the Canadian Seller's Board of Directors authorizing the
execution, delivery and consummation of this Agreement, the Voting
Trust Agreement, the Proxy, the Assignment and the Back-Up Option
Agreement and the transactions contemplated hereby and thereby;
(vi) an opinion of Harwell Howard Hyne Gabbert &
Manner, P.C., counsel to the Company and the Sellers, dated the Closing
Date, and
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substantially in the form and substance of the letter annexed
hereto as Appendix 7.2.7A (provided that such firm may rely on other
attorneys with respect to issues of local law if such attorneys are
reasonably acceptable to the Purchaser, the firm of Harwell Howard Hyne
Gabbert & Manner, P.C. advises the Purchaser that it is reasonable to
rely on such attorneys and such attorneys' opinion is furnished
directly to the Purchaser); an opinion of Goodman, Phillips and
Vineberg, counsel to the Canadian Seller, dated the Closing Date, and
substantially in the form and substance of the letter annexed hereto as
Appendix 7.2.7B; and an opinion of William McCormick, counsel to the
Company, dated the Closing Date, and substantially in the form and
substance of the letter annexed hereto as Appendix 7.2.7C.
(vii) such other documents or instruments as the
Purchaser reasonably requests to effect the transactions contemplated
hereby.
7.2.8 Prior to or at the Closing, to the extent requested by the
Purchaser, each of the Companies shall have received the written resignations
(in form and substance reasonably satisfactory to the Purchaser) of each of its
directors and officers or persons holding similar positions in entities which do
not have directors or officers, effective as of the Closing.
7.2.9 On or before the Closing Date, (a) the Company and each of
the Designated Optionees shall have entered into option cancellation agreements
in the form and substance of the agreement annexed hereto as Appendix 7.2.9A
(the "Designated Optionee Option Cancellation Agreements") and (b) the Company
and each of the Non-Designated Optionees shall have entered into option
cancellation agreements in the form and substance of the agreement annexed
hereto as Appendix 7.2.9B (the "Non-Designated Optionee Option Cancellation
Agreements" and, collectively with the Designated Optionee Option Cancellation
Agreements, the "Option Cancellation Agreements").
7.2.10 The operating agreement for Stadt Solutions LLC shall have
been amended, in form and substance satisfactory to the Purchaser, to assure
that neither the Purchaser nor any of its Subsidiaries (other than the
Companies) shall be obligated under any of the covenants set forth in that
agreement.
7.2.11 The Sellers shall have provided to the Purchaser the
Interim Audited Financial Statements in accordance with Section 6.22.1, together
with an unqualified report thereon of the Accountants, which report shall be in
form and substance satisfactory to the Purchaser.
7.2.12 Intentionally omitted.
7.2.13 No shares of Stadtlander Common Stock shall have been
issued
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at any time from the date hereof through the consummation of the Closing, and no
shares of such stock shall be issuable subsequent to the Closing pursuant to the
exercise of any Stock Options.
7.2.14 Intentionally omitted.
Section 7.3 Conditions to the Sellers' Obligations. The obligations of
the Sellers to consummate the transactions contemplated by this Agreement shall
be subject to the fulfillment at or prior to the Closing of each of the
following conditions:
7.3.1 The representations and warranties of the Purchaser set
forth in Article V shall be true and correct in all material respects (other
than representations and warranties which are qualified as to materiality, which
representations and warranties shall be true in all respects) on the date hereof
and on and as of the Closing Date as though made on and as of the Closing Date
(except for representations and warranties made as of a specified date, which
shall be measured only as of such specified date).
7.3.2 The Purchaser shall have performed in all material respects
each obligation and agreement and shall have complied in all material respects
with each covenant to be performed and complied with by it under the Transaction
Agreements at or prior to the Closing.
7.3.3 All authorizations or approvals or other action required in
connection with the execution, delivery and performance of this Agreement by the
Purchaser and the consummation by the Purchaser of the transactions contemplated
hereby and thereby shall have been obtained and shall be in full force and
effect.
7.3.4 Prior to or at the Closing, Purchaser shall have delivered
such other closing documents as shall be reasonably requested by the Sellers in
form and substance acceptable to the Sellers' counsel (which acceptance shall
not be unreasonably withheld), including the following:
(i) a certificate of the President or a Vice
President of the Purchaser, dated the Closing Date, to the effect that
(1) the person signing such certificate is familiar with this Agreement
and (2) to the best of such person's knowledge, the conditions
specified in Section 7.3.1 and 7.3.2 have been satisfied;
(ii) a certificate of the Secretary or Assistant
Secretary of the Purchaser, dated the Closing Date, as to the
incumbency of any officer of the Purchaser executing this Agreement or
any document related hereto and covering such other matters as the
Sellers may reasonably request;
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(iii) a certified copy of (1) the Certificate of
Incorporation and by-laws of the Purchaser and all amendments thereto
and (2) the resolutions of the Purchaser's Board of Directors (or
Executive Committee thereof) authorizing the execution, delivery and
consummation of this Agreement and the transactions contemplated hereby
and thereby;
(iv) an opinion of Lowenstein Sandler PC, counsel to
the Purchaser, dated the Closing Date, and substantially in the form
and substance of the letter annexed hereto as Appendix 7.3.3 (provided
that such firm may rely on other attorneys with respect to issues of
local law if such attorneys are reasonably acceptable to the Sellers,
the firm of Lowenstein Sandler PC advises the Sellers that it is
reasonable to rely on such attorneys and such attorneys' opinion is
furnished directly to the Sellers), and
(v) such other documents or instruments as the
Sellers reasonably request to effect the transactions contemplated
hereby.
7.3.5 During the period from June 30,1998 through the Closing
Date, there shall not have been any Material Adverse Change affecting the
Purchaser, other than events publicly disclosed by the Purchaser prior to the
date hereof. The Sellers shall have received a certificate (executed by the
President or any Vice President of the Purchaser to such officer's best
knowledge), dated the Closing Date, to the foregoing effect
7.3.6 Intentionally omitted.
7.3.7 At the Closing, the Purchaser shall have tendered payment
of the Estimated Net Purchase Price in accordance with Section 2.2.2 and shall
have executed and delivered the Voting Trust Agreement.
ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement may be terminated at any time prior to
the consummation of the Closing, whether before or after approval and adoption
of this Agreement by the Canadian Seller's shareholders, under the following
circumstances:
8.1.1 by mutual written consent of the Sellers and the Purchaser;
8.1.2 by either the Purchaser or the Sellers if any permanent
injunction or other order of a court or other competent governmental authority
preventing the
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consummation of the transactions contemplated hereby shall have become final and
nonappealable;
8.1.3 by either the Purchaser or the Sellers if the Closing shall
not have been consummated on or before the Outside Date (provided that the right
to terminate this Agreement under this Section 8.1.3 shall not be available to
any party whose willful act or willful failure to act or whose Affiliate's
willful act or willful failure to act has been the cause of or resulted in the
failure of the Closing to be consummated on or before the Outside Date);
8.1.4 by the Purchaser or the Sellers if, at or before the
completion of the Closing, it shall have discovered that any representation or
warranty made in the Transaction Agreements for its benefit, or in any
certificate, exhibit or document furnished to it pursuant to the Transaction
Agreements, is untrue in any material respect (other than representations and
warranties which are qualified as to materiality, which representations and
warranties will give rise to termination if untrue in any respect);
8.1.5 by the Purchaser if the Sellers or the Company shall have
defaulted in the performance of any material obligation under the Transaction
Agreements; provided, however, that in order to terminate this Agreement under
this Section 8.1.5, the Purchaser shall, upon discovery of such a breach or
default, give written notice thereof to the breaching party and the breaching
party shall fail to cure the breach or default by the earlier of twenty (20)
calendar days after receipt of such notice or the Closing Date;
8.1.6 by the Sellers or the Company if the Purchaser shall have
defaulted in the performance of any material obligation under the Transaction
Agreements; provided, however, that in order to terminate this Agreement under
this Section 8.1.6, the Sellers and/or the Company shall, upon discovery of such
a breach or default, give written notice thereof to the Purchaser and the
Purchaser shall fail to cure the breach or default by the earlier of twenty (20)
calendar days after receipt of such notice or the Closing Date;
8.1.7 by either the Purchaser or the Sellers, if at the Canadian
Seller's Shareholders Meeting (including any adjournment or postponement
thereof) the requisite vote of the Canadian Seller's shareholders to approve the
sale of the Stadtlander Shares contemplated hereby shall not have been obtained;
8.1.8 by the Purchaser if any authorization, consent, waiver or
approval required for the consummation of the transactions contemplated hereby
shall require the divestiture or cessation of any of the present business or
operations conducted by the Purchaser or the Companies or shall impose any other
condition or requirement, which divestiture, cessation, condition or requirement
the Purchaser determines, in its
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good faith judgment, to be materially burdensome or to deny to the Purchaser in
any material respect the benefits intended to be obtained by the Purchaser
pursuant to the transactions contemplated by this Agreement;
8.1.9 by the Purchaser, in the event that the conditions to its
obligations set forth in Article VII hereof have not been satisfied or waived by
the date set for the Closing or in the event that the Purchaser reasonably
determines that any such condition cannot possibly be satisfied prior to the
Outside Date;
8.1.10 by the Sellers, in the event that the conditions to their
obligations set forth in Article VII hereof have not been satisfied or waived by
the date set for the Closing or in the event that the Sellers reasonably
determines that any such condition cannot possibly be satisfied prior to the
Outside Date;
8.1.12 by the Purchaser if any of the Persons designated in
Section 3.25 of the Companies' Disclosure Schedule shall have breached in any
material respect any of his, her or its obligations under any of the Support
Agreements;
8.1.13 by the Canadian Seller pursuant to Section 6.8.2;
8.1.14 by the Purchaser if the Board of Directors of the Canadian
Seller shall withdraw, modify or change its recommendation, made on or before
the date hereof, that the shareholders of the Canadian Seller approve the sale
of the Stadtlander Shares contemplated hereby, or if the Board of Directors of
the Canadian Seller shall have refused to affirm such recommendation as promptly
as practicable (but in any case within ten (10)Business Days) after receipt of
any request from the Purchaser which request was made on a reasonable basis; or
8.1.15 by the Canadian Seller in the event that the Canadian
Seller determines, and the Purchaser concurs (such concurrence not to be
unreasonably withheld), that the number of shares of the Canadian Seller's
capital stock for which dissenters' rights have been exercised in connection
with the Canadian Seller's Shareholders' Meeting is so substantial as to
materially adversely affect the Canadian Seller's financial condition.
Section 8.2 Effect of Termination
8.2.1 In the event of the termination of this Agreement pursuant
to Section 8.1, this Agreement, except for the provisions of Sections 6.1, 10.2
and 10.9 and this Section 8.2, shall become void and have no effect, without any
liability on the part of any party or its directors, officers or stockholders.
Notwithstanding the foregoing, nothing in this Section 8.2 shall relieve any
party to this Agreement of liability for a material breach of any provision of
this Agreement and provided, further, however, that if it shall be judicially
determined that termination of this Agreement was caused by an
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intentional breach of this Agreement, then, in addition to other remedies at law
or equity for breach of this Agreement, the party so found to have intentionally
breached this Agreement shall indemnify and hold harmless the other parties for
their respective out-of-pocket costs, including the fees and expenses of their
counsel, accountants, financial advisors and other experts and advisors as well
as fees and expenses incident to the negotiation, preparation and execution of
this Agreement and related documentation.
8.2.2 The Canadian Seller agrees that, if:
8.2.2.1 the Canadian Seller terminates this Agreement
pursuant to Sections 6.8.2 and 8.1.13;
8.2.2.2 the Purchaser terminates this Agreement pursuant to
Section 8.1.12 or 8.1.14;
8.2.2.3 (A) the Purchaser or the Canadian Seller terminates
this Agreement pursuant to Section 8.1.7, (B) at the time of such failure by the
Canadian Seller's shareholders to so approve the sale of the Stadtlander Shares
contemplated hereby there is a publicly announced or disclosed Competing
Transaction with respect to any of the Companies or any of the Sellers involving
a third party, and (C) within 12 months after such termination, any of the
Companies shall enter into an Acquisition Agreement for a Business Combination
or consummates a Business Combination; or
8.2.2.4 the Canadian Seller terminates this Agreement
pursuant to Section 8.1.15,
then, (W) in the case of a termination by the Purchaser as described in Section
8.2.2.2, within three (3) Business Days following any such termination, (X) in
the case of a termination by the Canadian Seller as described in Section
8.2.2.1, concurrently with such termination, (Y) in the case of a termination by
the Canadian Seller as described in Section 8.2.2.4 upon the earlier of a
consummation of a Competing Transaction or execution of a definitive agreement
with respect thereto if either such consummation or such execution occurs within
twelve months after such termination by the Canadian Seller, or (Z) in the case
of a termination by the Canadian Seller or the Purchaser as described in Section
8.2.2.3 where a Competing Transaction has been publicly announced or publicly
disclosed prior to the Canadian Seller's Shareholders Meeting (including any
adjournment or postponement thereof), prior to the earlier consummation of a
Business Combination or execution of a definitive agreement with respect
thereto, in any such case described in clauses (W), (X), (Y) or (Z), the
Canadian Seller will pay to the Purchaser in cash by wire transfer in
immediately available funds to an account designated by the Purchaser the sum of
twelve million dollars ($12,000,000), inclusive of the Purchaser's costs. For
purposes of this Agreement, "Business Combination" means (i) a merger,
consolidation, share exchange, business combination or similar transaction
involving any of the Companies or either of the Sellers as a result of which
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the shareholders thereof reduce their percentage ownership interest in the
equity interests of the entity surviving or resulting from such transaction (or
the ultimate parent entity thereof) below seventy-five percent (75%) of such
percentage ownership interest as such percentage ownership interest existed
immediately prior to the commencement of negotiations of such transaction, (ii)
a sale, lease, exchange, transfer or other disposition of all or substantially
all of the assets of any of the Companies, or (iii) the acquisition, by a Person
(other than the Purchaser or any affiliate thereof) or group (as such term is
defined under Section 13(d) of the Exchange Act and the rules and regulations
thereunder) of beneficial ownership (as defined in Rule 13d-3 under the Exchange
Act) of an equity interest of more than twenty-five percent (25%) in any of the
Companies or in either of the Sellers beyond the equity interests that such
Person or group beneficially owns on the date hereof.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
Section 9.1 Survival of Representations and Warranties. Except as set
forth below, the representations and warranties provided for in this Agreement
shall survive the Closing and remain in full force and effect for one year from
the Closing Date for the benefit of the parties hereto and their successors and
assigns. The representations and warranties provided for in Section 3.8 shall
survive the Closing and remain in full force and effect for the benefit of the
parties hereto and their successors and assigns until thirty (30) calendar days
after the expiration of the applicable statute of limitations. The
representations and warranties provided for in Section 3.22 shall survive the
Closing and remain in full force and effect for two years from the Closing Date
for the benefit of the parties hereto and their successors and assigns. The
survival period of each representation or warranty as provided in this Section
9.1 is hereinafter referred to as the "Survival Period."
Section 9.2 Indemnification
9.2.1 The Sellers, subject to the limitations set forth in
Section 9.2.4, shall jointly and severally indemnify and hold harmless the
Purchaser, its Affiliates, officers, directors, employees, agents and
representatives, the Companies, and any Person claiming by or through any of the
foregoing, against and in respect of any and all claims, costs, expenses,
damages, liabilities, losses or deficiencies (including, without limitation,
attorneys' fees and other costs and expenses incident to any suit, action or
proceeding) (the "Damages") arising out of, resulting from or incurred in
connection with (i) subject to Section 9.6, any inaccuracy in any representation
or the breach of any warranty made by the Sellers or the Company in this
Agreement for the applicable Survival Period, (ii) any claim made after the
Closing that any of the Companies are
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responsible for any Taxes with respect to any period on or before the Closing
Date, other than liabilities for Taxes accrued in determining the Net Worth as
of the Closing Date hereunder and other than claims resulting from actions which
the Companies voluntarily elect to take after the Closing, but are not required
to take, which actions are inconsistent with positions taken by the Company
prior to the Closing, (iii) any liabilities of any of the Companies with respect
to any of the Plans in effect as of the Closing Date, other than liabilities
accrued in determining the Net Worth as of the Closing Date hereunder, (iv) any
matter described in Section 3.13 of the Companies' Disclosure Schedule, (v) any
liability of any of the Companies for Taxes of any Person, other than any of the
Companies, under Treas. Reg. ss.1.1502-6 or any comparable provision of state,
local or foreign law, as a transferee or successor, by contract, or otherwise,
(vi) the breach by the Sellers of any covenant or agreement to be performed by
the Sellers hereunder; (vii) any payment made by the Company pursuant to
Sections VIII,A and/or XI,A of the CEO Contract in excess of the amounts set
forth in Section 9.2.1 of the Companies' Disclosure Schedule; (viii) the failure
by the Purchaser to acquire at the Closing one hundred percent (100%) of the
outstanding Stadtlander Common Stock free and clear of all security interests,
liens, encumbrances, claims or restrictions of any kind or the failure by the
Company to own, as of the Closing, directly or indirectly, one hundred percent
(100%) of the equity interests in the Subsidiaries (except to the extent that
the Company does not own, as of the date hereof, one hundred percent (100%) of
such equity interests, as described in Section 3.2 of the Companies' Disclosure
Schedule), free and clear of all security interests, liens, encumbrances, claims
or restrictions of any kind; (ix) any claim by any Person that such Person owns
more Stock Options than the number of Stock Options set forth in Section 3.4 of
the Companies' Disclosure Schedule and/or that the exercise price of such
Person's Stock Options is different than the exercise price et forth in Section
3.4 of the Companies' Disclosure Schedule; and (x) any failure by either of the
Sellers to comply with any applicable bulk sales law.
9.2.2 The Purchaser, subject to the limitations set forth in
Section 9.2.4, shall indemnify and hold harmless the Sellers and their
respective Affiliates, officers, directors, employees, agents and
representatives, and any Person claiming by or through any of them, against and
in respect of any and all Damages arising out of, resulting from or incurred in
connection with (i) subject to Section 9.6, any inaccuracy in any representation
or the breach of any warranty made by the Purchaser in this Agreement for the
applicable Survival Period, (ii) the breach by the Purchaser of any covenant or
agreement to be performed by it hereunder or (iii) the operation of the Company
after the Closing, except to the extent that the Purchaser is indemnified
hereunder with respect to such matter.
9.2.3 Any Person providing indemnification pursuant to the
provisions of this Section 9.2 is hereinafter referred to as an "Indemnifying
Party" and any Person entitled to be indemnified pursuant to the provisions of
this Section 9.2 is hereinafter referred to as an "Indemnified Party."
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9.2.4 The Sellers' indemnification obligations contained in
Sections 9.2.1(i), 9.2.1(iii) and 9.2.1(iv) hereunder shall not apply to any
claim for Damages until the aggregate of all such claims total $2,000,000, in
which event the Seller's indemnity obligation contained in Sections 9.2.1(i),
9.2.1(iii)and 9.2.1(iv) hereunder shall apply to the total amount in excess of
$2,000,000, subject to a maximum liability to the Purchaser of $25,000,000 for
all claims under Section 9.2.1(i), 9.2.1(iii) and 9.2.1(iv) in the aggregate.
The Purchaser's indemnification obligation contained in Sections 9.2.2(i) and
9.2.2(iii) hereunder shall not apply to any claim for Damages until the
aggregate of all such claims total $2,000,000, in which event the Purchaser's
indemnity obligation contained in Sections 9.2.2(i) and 9.2.2(iii) shall apply
to the total amount in excess of $2,000,000, subject to a maximum liability to
the Sellers of $25,000,000 for all claims under Sections 9.2.2(i) and 9.2.2(iii)
in the aggregate. All such claims made during the relevant Survival Period shall
be counted in determining whether the thresholds specified above have been
achieved.
9.2.5 The provisions of Article IX shall constitute the sole and
exclusive remedy of any Indemnified Party for Damages arising out of, resulting
from or incurred in connection with any inaccuracy in any representation or the
breach of any warranty made by the Purchaser, the Company or the Sellers in this
Agreement.
Section 9.3 Procedures for Third Party Claims. In the case of
any claim for indemnification arising from a claim of a third party (a "Third
Party Claim"), an Indemnified Party shall give prompt written notice to the
Indemnifying Party of any claim or demand of which such Indemnified Party has
knowledge and as to which it may request indemnification hereunder. The
Indemnifying Party shall have the right to defend and to direct the defense
against any such Third Party Claim, in its name or in the name of the
Indemnified Party, as the case may be, at the expense of the Indemnifying Party,
and with counsel selected by the Indemnifying Party unless (i) such Third Party
Claim seeks an order, injunction or other equitable relief against the
Indemnified Party, or (ii) the Indemnified Party shall have reasonably concluded
that (x) there is a conflict of interest between the Indemnified Party and the
Indemnifying Party in the conduct of the defense of such Third Party Claim or
(y) the Indemnified Party has one or more defenses not available to the
Indemnifying Party. Notwithstanding anything in this Agreement to the contrary,
the Indemnified Party shall, at the expense of the Indemnifying Party, cooperate
with the Indemnifying Party, and keep the Indemnifying Party fully informed, in
the defense of such Third Party Claim. The Indemnified Party shall have the
right to participate in the defense of any Third Party Claim with counsel
employed at its own expense; provided, however, that, in the case of any Third
Party Claim described in clause (i) or (ii) of the second preceding sentence or
as to which the Indemnifying Party shall not in fact have employed counsel to
assume the defense of such Third Party Claim, the reasonable fees and
disbursements of such counsel shall be at the expense of the Indemnifying Party.
The Indemnifying Party shall have no indemnification obligations with respect to
any Third Party Claim which shall be settled by the Indemnified Party without
the prior written consent of the
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Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
Section 9.4 Procedures for Inter-Party Claims. In the event that an
Indemnified Party determines that it has a claim for Damages against an
Indemnifying Party hereunder (other than as a result of a Third Party Claim),
the Indemnified Party shall give prompt written notice thereof to the
Indemnifying Party, specifying the amount of such claim and any relevant facts
and circumstances relating thereto. The Indemnified Party shall provide the
Indemnifying Party with reasonable access to its books and records for the
purpose of allowing the Indemnifying Party a reasonable opportunity to verify
any such claim for Damages. The Indemnified Party and the Indemnifying Party
shall negotiate in good faith regarding the resolution of any disputed claims
for Damages. Promptly following the final determination of the amount of any
Damages claimed by the Indemnified Party, the Indemnifying Party shall pay such
Damages to the Indemnified Party by wire transfer or check made payable to the
order of the Indemnified Party, without interest. In the event that the
Indemnified Party is required to institute legal proceedings in order to recover
Damages hereunder, the cost of such proceedings (including costs of
investigation and reasonable attorneys' fees and disbursements) shall be added
to the amount of Damages payable to the Indemnified Party.
Section 9.5 Intentionally omitted.
Section 9.6 Limitations Arising from Knowledge of Claims.
Notwithstanding any provision herein to the contrary, neither the Sellers nor
the Purchaser shall be entitled to indemnification with respect to any claim
under either Section 9.2.1(i) or 9.2.2(i) in the event that the party seeking
indemnification had knowledge of the substance and approximate magnitude of such
claim prior to the Closing.
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be delivered personally, by
facsimile, by overnight courier or sent by certified or registered mail, postage
prepaid, and shall be deemed given when so delivered personally, or when so
received by facsimile or courier, or if mailed, three calendar days after the
date of mailing, as follows:
If to the Purchaser: Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, California 92668-3598
Telephone: 714-385-4000
Facsimile: 714-385-6815
Attention: Milan A. Sawdei, Esq.
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with a copy (which shall not constitute notice) to:
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, New Jersey 07068
Telephone: (973)597-2500
Facsimile: (973) 597-2400
Attention: Peter H. Ehrenberg, Esq.
If to the Company/Sellers: Counsel Corporation
Exchange Tower
130 King Street West
Suite 1300
Toronto, Ontario M5X 1E3
Facsimile: 416-866-3061
Attention: Allan Silber
With a copy (which shall not constitute notice) to:
Harwell Howard Hyne Gabbert & Manner, P.C.
18th Floor First American Center
315 Deaderick Street
Nashville, Tennessee 37238
Telephone: 615-256-0500
Facsimile: 615-251-1057
Attention: Mark Manner, Esq.
or to such other address as any party hereto shall notify the other parties
hereto (as provided above) from time to time.
Section 10.2 Expenses. Regardless of whether the transactions provided
for in this Agreement are consummated, except as otherwise provided herein, each
of the Canadian Seller, the US Seller and the Purchaser shall pay its own
expenses incident to this Agreement and the transactions contemplated herein
(including without limitation legal fees, accounting fees and investment banking
fees). No portion of such expenses shall be borne by any of the Companies.
Except in the event of a Special Termination, the Purchaser, upon receipt of
invoices from the Sellers, shall reimburse the Sellers for a portion of the fees
and disbursements paid to the investment bankers, attorneys and accountants
representing the Sellers and the Companies (the "Fees and Disbursements"), such
portion to equal the lesser of $2,500,000 and one half of such Fees and
Disbursements. The Purchaser shall not be responsible for any of the Fees and
Disbursements in the event of a Special Termination. For purposes of this
Agreement, the term "Special Termination" shall mean (a) any termination of this
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Agreement described in Section 8.2.2 and (b) any termination resulting from a
breach of a covenant or representation by the Sellers or the Company.
Section 10.3 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the
State of Delaware, without reference to the choice of law principles thereof.
Each of the parties hereto irrevocably submits to the non-exclusive jurisdiction
of the courts of the states of Pennsylvania, New Jersey and California and the
United States District Court for any District within such states for the purpose
of any suit, action, proceeding or judgment relating to or arising out of this
Agreement and the transactions contemplated hereby. Service of process in
connection with any such suit, action or proceeding may be served on each party
hereto anywhere in the world by the same methods as are specified for the giving
of notices under this Agreement. Each of the parties hereto irrevocably consents
to the jurisdiction of any such court in any such suit, action or proceeding and
to the laying of venue in such court. Each party hereto irrevocably waives any
objection to the laying of venue of any such suit, action or proceeding brought
in such courts and irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
Section 10.4 Assignment; Successors and Assigns; No Third Party Rights.
Except as otherwise provided herein, this Agreement may not be assigned by
operation of law or otherwise, and any attempted assignment shall be null and
void. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, assigns and legal
representatives. This Agreement shall be for the sole benefit of the parties to
this Agreement, their respective successors, assigns and legal representatives,
and any Person who is an Indemnified Party, and is not intended, nor shall be
construed, to give any Person, other than the parties hereto and their
respective successors, assigns and legal representatives and any Person who is
an Indemnified Party, any legal or equitable right, remedy or claim hereunder.
Section 10.5 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original agreement, but all of
which together shall constitute one and the same instrument.
Section 10.6 Titles and Headings. The headings and table of contents in
this Agreement are for reference purposes only, and shall not in any way affect
the meaning or interpretation of this Agreement.
Section 10.7 Entire Agreement. This Agreement (including the disclosure
schedules delivered in connection with this Agreement and the agreements
referenced in the appendices attached hereto), the Support Agreements and the
confidentiality agreements among the parties dated as of September 30, 1998 and
August 27, 1998 constitute the entire agreement among the parties with respect
to the matters covered hereby and thereby and supersede all previous written,
oral or implied understandings
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among them with respect to such matters.
Section 10.8 Amendment and Modification. This Agreement may be amended
by the parties hereto, by action taken or authorized by their respective Boards
of Directors (or executive committees thereof), at any time before or after
approval by the shareholders of the Canadian Seller of the sale of the
Stadtlander Shares contemplated hereby, but after any such approval, no
amendment shall be made which by law requires further approval or authorization
by the shareholders of the Canadian Seller without such further approval or
authorization. Notwithstanding the foregoing, this Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
Section 10.9 Publicity. Unless otherwise required by applicable laws or
the requirements of any national securities exchange (and in that event only if
time does not permit), at all times prior to the earlier of the consummation of
the Closing or termination of this Agreement pursuant to Section 8.1, the
Sellers and the Purchaser shall consult with each other before issuing any press
release with respect to the transactions contemplated hereby and shall not issue
any such press release prior to such consultation.
Section 10.10 Waiver. Any of the terms or conditions of this Agreement
may be waived at any time by the party or parties entitled to the benefit
thereof, but only by a writing signed by the party or parties waiving such terms
or conditions.
Section 10.11 Severability. The invalidity of any portion hereof shall
not affect the validity, force or effect of the remaining portions hereof. If it
is ever held that any restriction hereunder is too broad to permit enforcement
of such restriction to its fullest extent, such restriction shall be enforced to
the maximum extent permitted by law.
Section 10.12 No Strict Construction. Each of the Purchaser, the
Company and the Sellers acknowledge that this Agreement has been prepared
jointly by the parties hereto, and shall not be strictly construed against any
party.
Section 10.13 Knowledge. To the extent that any representation is made
to the knowledge of the Company and/or the Sellers and to the extent that
knowledge of the Sellers is relevant for purposes of Section 9.6, such knowledge
shall refer to the actual knowledge of Allan Silber, Morris Perlis, Michele
Hooper, James Sas, Gordon Vanscoy, Michele Law, Trey Hartman, Sean Creehan,
Pamela Price and Russ Allinson. To the extent that knowledge of the Purchaser is
relevant for purposes of Sections 6.1 and 9.6, such knowledge shall refer to the
actual knowledge of Robert Martini, Don Roden, Neil Dimick, Milan Sawdei, Steve
Collis, Eric Schmitt and Donna Dolan.
Section 10.14 Subsidiaries' Ownership of PharMerica Shares. To the
extent that any provisions of this Agreement require the Canadian Seller to take
certain
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actions with respect to its subsidiaries' conduct relating to the
PharMerica Shares, such provisions shall only relate to those subsidiaries of
the Canadian Seller that own any PharMerica Shares.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
STADTLANDER DRUG CO.,INC.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
COUNSEL CORPORATION
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
STADT HOLDINGS, INC.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
BERGEN BRUNSWIG CORPORATION
By:
-------------------------------------------
Name: Donald R. Roden
-----------------------------------------
Title: President and Chief Executive Officer
----------------------------------------
[STOCK PURCHASE AGREEMENT]
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TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
Article I - Certain Definitions
Section 1.1 Certain Definitions 2
Section 1.2 Terms Defined in Other Sections 8
Section 1.3 Interpretation 10
Article II - Purchase and Sale of Stock; Grant of the Back-up Option Agreement and Other
Rights; Additional Covenants
Section 2.1 Purchase and Sale of the Stadtlander Common Stock; Grant of the Back-up Option
Agreement and Other Rights 11
Section 2.2 Estimated Net Purchase Price; Adjustments to the Estimated Net Purchase Price;
Payment of Consideration 11
Section 2.3 Securities Law Matters 15
Section 2.4 Restrictions on Sales and Other Transfers 17
Section 2.5 Determination of Net Worth as of the Closing Date 18
Section 2.6 Determination of September 30 Net Worth 20
Section 2.7 Closing 20
Article III - Representations and Warranties Regarding the Companies
Section 3.1 Organization and Standing; Business 20
Section 3.2 Subsidiaries 21
Section 3.3 Corporate Power and Authority 22
Section 3.4 Capitalization of the Company 22
Section 3.5 Conflicts, Consents and Approvals 23
Section 3.6 No Material Adverse Change 24
</TABLE>
<PAGE> 81
<TABLE>
<S> <C> <C>
Section 3.7 Intentionally omitted 24
Section 3.8 Taxes 24
Section 3.9 Compliance with Law 25
Section 3.10 Intellectual Property 26
Section 3.11 Title to and Condition of Properties 26
Section 3.12 Medicare and Medicaid; Reimbursement by Payors; Related Legislation and
Regulations 26
Section 3.13 Litigation 28
Section 3.14 Brokerage and Finder's Fees; Expenses 28
Section 3.15 Financial Statements 28
Section 3.16 Employee Benefit Plans 30
Section 3.17 Contracts 32
Section 3.18 Labor Matters 33
Section 3.19 Undisclosed Liabilities 34
Section 3.20 Operation of the Businesses; Relationships 34
Section 3.21 Permits; Compliance 34
Section 3.22 Environmental Matters 35
Section 3.23 Intentionally omitted 36
Section 3.24 Year 2000 36
Section 3.25 Antitakeover Laws; Support Agreements 36
Section 3.26 Accounts Receivable and Inventories 36
Section 3.27 Insurance 36
Section 3.28 Employee Agreements 37
</TABLE>
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<TABLE>
<S> <C> <C>
Section 3.29 Director Compensation 37
Article IV - Representations and Warranties Regarding the Sellers
Section 4.1 Organization and Qualification of the Seller 37
Section 4.2 Corporate Power and Authority 37
Section 4.3 Conflicts; Consents and Approvals 38
Section 4.4 Indemnification 39
Section 4.5 Ownership of the Shares 39
Section 4.6 Brokers 40
Section 4.7 Securities and Related Matters 40
Section 4.8 Intentionally omitted 41
Section 4.9 Board Recommendation 41
Article V - Representations and Warranties Regarding the Purchaser
Section 5.1 Organization and Standing 41
Section 5.2 Corporate Power and Authority 42
Section 5.3 Capitalization of the Purchaser 42
Section 5.4 Conflicts; Consents and Approvals 42
Section 5.5 Brokers 43
Section 5.6 BBC SEC Documents and Other Public Disclosures 43
Article VI - Covenants and Agreements
Section 6.1 Access and Information 44
Section 6.2 Affirmative Covenants 45
Section 6.3 Negative Covenants 46
Section 6.4 Closing Documents 48
Section 6.5 Transfer and Other Taxes 48
Section 6.6 Non-Competition and Confidentiality Agreement 49
Section 6.7 Reasonable Efforts; Further Assurances 50
Section 6.8 Third Party Proposals 50
Section 6.9 Tax Election 53
Section 6.10 Hart-Scott-Rodino Filings 53
Section 6.11 Notification by the Purchaser 53
Section 6.12 Agreements 53
Section 6.13 Company 54
Section 6.14 Retained Employees 55
Section 6.15 PharMerica Shares 56
</TABLE>
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<TABLE>
<S> <C> <C>
Section 6.16 Environmental Matters 57
Section 6.17 Canadian Seller's Shareholders' Meeting 57
Section 6.18 Payment of Certain Debt 58
Section 6.19 Pharmaceutical Supply Agreement and Shared Services Agreement 59
Section 6.20 Access to Prepare the Proposed Statement and to review Other Documents 59
Section 6.21 Assignment of Rights 59
Section 6.22 Audited Financial Statements 60
Article VII - Conditions to Closing
Section 7.1 Mutual Conditions 61
Section 7.2 Conditions to the Purchaser's Obligations 62
Section 7.3 Conditions to the Seller's Obligations 65
Article VIII - Termination
Section 8.1 Termination 67
Section 8.2 Effect of Termination 69
Article IX - Survival of Representations and Warranties; Indemnification
Section 9.1 Survival of Representations and Warranties 71
Section 9.2 Indemnification 71
Section 9.3 Procedures for Third Party Claims 73
Section 9.4 Procedures for Inter-Party Claims 73
Section 9.5 Right of Set-Off 74
Section 9.6 Limitations Arising from Knowledge of Claims 74
Article X - Miscellaneous
Section 10.1 Notices 74
Section 10.2 Expenses 75
Section 10.3 Governing Law; Consent to Jurisdiction 76
Section 10.4 Assignment; Successors and Assigns; No Third Party Rights 76
Section 10.5 Counterparts 76
Section 10.6 Titles and Headings 76
Section 10.7 Entire Agreement 76
Section 10.8 Amendment and Modification 77
Section 10.9 Publicity 77
Section 10.10 Waiver 77
Section 10.11 Severability 77
</TABLE>
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<TABLE>
<S> <C> <C>
Section 10.12 No Strict Construction 77
Section 10.13 Knowledge 77
Section 10.14 Subsidiaries' Ownership of PharMerica Shares 78
COMPANIES' DISCLOSURE SCHEDULE
Schedule 3.1 Organization and Standing; Business
Schedule 3.2 Subsidiaries
Schedule 3.4 Capitalization of the Company
Schedule 3.5 Conflicts; Consents and Approvals
Schedule 3.8. Taxes
Schedule 3.9 Compliance with Law
Schedule 3.10 Intellectual Property
Schedule 3.12 Medicare and Medicaid; Reimbursement by Payors; Related Legislation and
Regulations
Schedule 3.13 Litigation
Schedule 3.15 Financial Statements
Schedule 3.16 Employee Benefit Plans
Schedule 3.17 Contracts
Schedule 3.18 Labor Matters
Schedule 3.19 Undisclosed Liabilities
Schedule 3.20 Operation of the Businesses; Relationships
Schedule 3.21 Permits; Compliance
Schedule 3.22 Environmental Matters
Schedule 3.25 Anti-takeover Laws; Support Agreements
Schedule 3.27 Insurance
Schedule 3.28 Employee Agreements; Option Cancellation Agreements
Schedule 3.29 Director Compensation
Schedule 4.3 Conflicts; Consents and Approvals
Schedule 4.4 Indemnification
Schedule 9.2 Indemnification
PURCHASER'S DISCLOSURE SCHEDULE
Schedule 5.4 Conflicts; Consents and Approvals
</TABLE>
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<TABLE>
<S> <C>
APPENDICES
Appendix 1.1 Back-up Option Agreement
Appendix 1.3 Irrevocable Proxy
Appendix 1.4 Voting Trust Agreement
Appendix 2.3.7 Registration Rights
Appendix 6.14 Transitional Consulting Agreements
Appendix 6.21 Assignment of Rights
Appendix 7.2.7A Form of Opinion of Harwell Howard Hyne Gabbert & Manner, P.C.,
Appendix 7.2.7B Form of Opinion of Goodman, Phillips and Vineberg
Appendix 7.2.7C Form of Opinion of William McCormick
Appendix 7.2.9A Designated Optionee Option Cancellation Agreements
Appendix 7.2.9B Non-Designated Optionee Option Cancellation Agreements
Appendix 7.3.3 Form of Opinion of Lowenstein Sandler PC
</TABLE>
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APPENDIX 1.3
Exhibit 2.2
______________ , 1998
Bergen Brunswig Corporation
4000 Metropolitan Drive
Orange, CA 92868
RE: IRREVOCABLE PROXY FOR PHARMERICA SHARES
Gentlemen:
We refer to that certain Stock Purchase Agreement, dated as of November
8, 1998 (the "Stock Purchase Agreement"), by and among Bergen Brunswig
Corporation, a New Jersey corporation ("BBC"), Stadtlander Drug Co., Inc., a
Pennsylvania corporation ("Stadtlander"), Counsel Corporation, an Ontario
corporation (the "Canadian Seller"), and Stadt Holdings, Inc., a Delaware
corporation and an indirect subsidiary of the Canadian Seller (the "U.S. Seller"
and, collectively with the Canadian Seller, the "Sellers"). All capitalized
terms not otherwise defined herein shall have the meanings ascribed thereto in
the Stock Purchase Agreement.
This letter is being delivered pursuant to Section 6.15 of the Stock
Purchase Agreement to evidence the voting rights we have granted to BBC with
respect to the PharMerica Shares now owned and hereafter acquired by us, subject
to our right to dispose of our PharMerica Shares in accordance with Section 6.15
of the Stock Purchase Agreement. We reiterate our acknowledgment that as a
material inducement and condition to your willingness to enter into the Stock
Purchase Agreement, you have requested, and the Sellers have agreed (on behalf
of themselves and their subsidiaries) under Section 6.15 of the Stock Purchase
Agreement to grant to you, an irrevocable proxy to vote the PharMerica Shares in
any and all votes by the stockholders of PharMerica in a vote to approve or
disapprove a PharMerica Business Combination (a "PharMerica Business Combination
Vote"), subject to our right to dispose of our PharMerica Shares in accordance
with Section 6.15 of the Stock Purchase Agreement.
In fulfillment of our agreement as aforesaid, we have executed and
attached to this letter an irrevocable proxy (the "Proxy") appointing BBC as
proxy, with full power of substitution, to vote in a PharMerica Business
Combination Vote all of the PharMerica Shares owned by the undersigned as of the
record date for such vote, as and to the extent BBC shall determine in its sole
discretion. We further acknowledge that the Proxy is coupled with an interest in
the subject PharMerica Shares by reason of the rights granted to BBC therein
under the Stock Purchase Agreement.
The Proxy is irrevocable, and shall not be terminated, revoked, amended
or modified in any way except by a writing signed by BBC and the undersigned.
This letter agreement, together with the Proxy and the Stock Purchase Agreement,
contains the entire agreement of the parties with respect to the subject matter
hereof. The undersigned acknowledge and agree that monetary damages are an
inadequate remedy for breach of the Proxy. Therefore, the undersigned agree that
BBC has the right and shall be entitled to, in addition to any other rights it
may have, specific enforcement of the Proxy. Each of the undersigned hereby
further agree that it shall do all things, take all steps, including without
limitation, executing all further documents, instruments, powers and agreements
to further the intent and purposes of this letter agreement and to confer upon
BBC the practical benefits to be realized by it hereunder.
<PAGE> 2
COUNSEL CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
COUNSEL HEALTHCARE ASSETS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
<PAGE> 3
IRREVOCABLE PROXY
The undersigned hereby appoint Bergen Brunswig Corporation (and its
successors and assigns) ("BBC"), acting through a duly authorized officer, as
proxy, with full power of substitution, to vote all of the shares of the Common
Stock of PharMerica, Inc. par value $.01 per share (the "PharMerica Shares"),
owned by the undersigned on the applicable record date (by vote at a meeting of
the stockholders of PharMerica, Inc. ("PharMerica"), at any adjournments or
postponements thereof, by solicitation of proxies, by solicitation of consents
or otherwise), in all votes of the stockholders of PharMerica on the approval or
disapproval of (a) any merger, consolidation, share exchange, business
combination or similar transaction involving PharMerica (other than a
transaction in which the shareholders of PharMerica will, after such
transaction, continue to own at least two thirds of the shares of the successor
corporation), (b) any sale, lease or transfer of substantially all of the assets
of PharMerica, (c) any tender or exchange offer made generally to the
shareholders of PharMerica and (d) any other transaction which, if consummated,
would be required by the Securities and Exchange Commission to be reported in
response to Item 1 of the Current Report on Form 8-K.
The undersigned expressly acknowledge that BBC may vote the PharMerica
Shares in the sole discretion of BBC, without regard to any instructions,
written or otherwise, that may be given by the undersigned in respect of such
vote. The undersigned further acknowledge that the undersigned's attendance at
any such vote of the stockholders shall not affect the validity of this Proxy.
This Proxy is coupled with an interest in the PharMerica Shares that are the
subject of this Proxy by reason of the rights granted to BBC under that certain
stock purchase agreement, dated as of November 8, 1998, among BBC, Counsel
Corporation ("Counsel"), Stadtlander Drug Co., Inc. and another subsidiary of
Counsel (the "Stock Purchase Agreement"). The undersigned further agree that the
undersigned shall not take any action or step, or fail to take and action or
step, to revoke this Proxy or otherwise diminish or prevent the practical
realization of the rights granted to BBC hereunder, subject to the undersigned's
rights under Section 6.15 of Agreement to dispose of PharMerica Shares in
certain circumstances.
The undersigned have the full power and authority to execute and
deliver this Proxy, and when so executed, this Proxy shall remain valid and in
effect until 11:59 p.m., Eastern Standard Time on December 31, 2001 (the
"Overall Expiration Time"); provided, however, that this Proxy shall cease to be
effective with respect to PharMerica Shares disposed of by the undersigned prior
to the Overall Expiration Time to the extent that such disposition is consistent
with the terms of Section 6.15 of the Stock Purchase Agreement.
COUNSEL HEALTHCARE ASSETS, INC. COUNSEL CORPORATION
By: By:
------------------------ ------------------------
Name: Name:
---------------------- ----------------------
Title: Title:
--------------------- ---------------------
<PAGE> 1
EXHIBIT 2.3
BACK-UP OPTION AGREEMENT
This Back-up Option Agreement (the "Agreement") is made as of the ___
day of ___________, 199 ,
BY AND
AMONG: COUNSEL CORPORATION, an Ontario corporation, with an
address for the purposes hereof at 130 King Street West,
Suite 1300, Toronto, Ontario M5X 1E3 (the "Canadian
Seller");
AND: COUNSEL HEALTHCARE ASSETS, INC., a Delaware corporation
and an indirect subsidiary of the Canadian Seller, with an
address for the purposes hereof at 280 Park Avenue, 28th
Floor, New York, New York 10017 (the "Subsidiary" and,
collectively with the Canadian Seller, the "PharMerica
Shareholders");
AND: BERGEN BRUNSWIG CORPORATION, a New Jersey corporation,
with an address for the purposes hereof at 4000
Metropolitan Drive, Orange, CA 92668 (the "Purchaser").
W I T N E S S E T H T H A T:
WHEREAS, the Canadian Seller, the Purchaser, Stadtlander Drug Co., Inc.,
a Pennsylvania corporation ("Stadtlander"), and Stadt Holdings, Inc., a Delaware
corporation and an indirect subsidiary of the Canadian Seller (the "U.S.
Seller") have entered into a certain Stock Purchase Agreement, dated as of
November 8, 1998 (the "Stock Purchase Agreement"), pursuant to which the
Purchaser has agreed to acquire all of the outstanding capital stock of
Stadtlander from each of the Canadian Seller and the U.S. Seller;
WHEREAS, on the date hereof, the Canadian Seller owns 6,994,315 shares
of the outstanding capital stock of PharMerica, Inc., a Delaware corporation
("PharMerica"), and the Subsidiary owns 825,000 shares of the outstanding
capital stock of PharMerica (collectively, the "PharMerica Stock");
WHEREAS, as a material inducement and condition to its willingness to
enter into and consummate the Stock Purchase Agreement, the Purchaser has
requested, and the Canadian Seller (on behalf of itself and its subsidiaries)
has agreed, under
<PAGE> 2
Section 6.15 of the Stock Purchase Agreement, that the Canadian Seller and its
subsidiaries shall grant to the Purchaser an irrevocable option to purchase the
PharMerica Stock in accordance with the conditions set forth herein;
WHEREAS, all of the PharMerica Shareholders' shares of PharMerica Stock
have been delivered to and deposited with the Purchaser as the voting trustee
(the "Voting Trustee") under that certain Voting Trust Agreement, dated
__________, 199 , by and among the parties hereto (the "Voting Trust");
WHEREAS, each of the PharMerica Shareholders have granted to the Voting
Trustee an irrevocable proxy authorizing the Purchaser to vote the PharMerica
Stock in certain circumstances (the "Proxy");
WHEREAS, each of the parties hereto believes it to be in their
respective best interests to set forth the terms of their respective
understandings with respect to the option described herein and the matters
related thereto as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Grant of Option. On and subject to the terms and conditions
in this Agreement, each of the PharMerica Shareholders hereby grants to the
Purchaser the irrevocable option to purchase (the "Option") all of the shares of
PharMerica Stock then owned by such PharMerica Shareholder at the time the
Purchaser gives an Exercise Notice (as defined below) to such Shareholder. The
Option shall expire at 11:59 p.m. Eastern Standard Time, on December 31, 2001
(the "Expiration Time") and, prior to the Expiration Time, shall cease to apply
(at the time of disposition) to any shares of PharMerica Stock that are disposed
of by the PharMerica Shareholders in accordance with Section 6.15 of the Stock
Purchase Agreement.
Section 2. Terms Governing Exercise of Option. (a) The Option may be
exercised, in whole or in part, from time to time, during the period commencing
simultaneously with the occurrence of a Triggering Event (as defined below) and
ending at the Expiration Time. In order to exercise the Option, the Purchaser
shall give written notice (an "Exercise Notice") to the PharMerica Shareholders
from whom it elects to acquire PharMerica Stock, specifying the number of shares
of PharMerica Stock it elects to purchase, the date on which such purchase shall
occur (which may be the date on which such notice is given) (the "Closing Date")
and the outcome of the vote at the Business Combination Meeting (as defined
below) that it desires to result. The parties hereto acknowledge that a
Triggering Event may occur as late as the day on which the Purchaser desires to
be the owner of some or all of the PharMerica Stock subject to this Agreement,
and therefore, an Exercise Notice given on the same date specified for Closing
by the Purchaser in such Exercise Notice shall be adequate for
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purposes of giving an Exercise Notice, provided that such notice is actually
received by the PharMerica Shareholders. It is further understood and agreed
that the Closing Date specified in an Exercise Notice need not be a date
certain, but may be a day, date or number of days related to another date
certain. By way of example and not in limitation, an Exercise Notice may provide
that a Closing shall occur on the business day immediately before a specifically
scheduled meeting of the shareholders of PharMerica.
(b) Certain Definitions. The following terms shall have the meanings
ascribed thereto for the purposes of this Agreement:
(i) The "Purchase Price" for the purchase of PharMerica Stock pursuant
to this Agreement shall equal the product (rounded to the nearest penny) of (x)
the number of shares of PharMerica Stock specified for purchase in an Exercise
Notice, multiplied by (y) 110% of the average closing price for one share of
PharMerica Stock (subject to appropriate adjustments for splits, dividends or
other subdivisions or combinations) for the last ten (10) Trading Days ending
three (3) Trading Days immediately prior to the Closing Date.
(ii) A "Trading Day" shall mean a day on which the PharMerica Stock is
traded in the NASDAQ National Market or other exchange or quotation service on
which the PharMerica Stock is traded.
(iii) The "Closing" shall be the closing of the purchase of the
PharMerica Stock specified in the Exercise Notice for which such Exercise Notice
is given.
(iv) A "Triggering Event" shall mean the occurrence of (x) and (y) in
any order:
(x) the announcement of, or the giving of notice for, a meeting
(a "Business Combination Meeting") of the PharMerica Shareholders to
vote on (exclusively or non-exclusively) a PharMerica Business
Combination (as defined in the Stock Purchase Agreement); and
(y) the first to occur of any one or more of the following
events: (1) the filing or commencement by any party other than the
Purchaser (or an "affiliate", as that term is defined in Rule 12b-2 of
the Rules and Regulations promulgated under the Securities Act of 1934,
as amended (the "'34 Act"), of the Purchaser) of an action, suit or
proceeding, to interpret, construe, overturn, invalidate, block, suspend
or otherwise impede the enforceability of, or the exercise of the
Purchaser's rights under, (A) any proxy relating to the PharMerica Stock
given at any time by any of the PharMerica Shareholders to the
Purchaser, including without limitation, the Proxy (a "Shareholder's
Proxy"), or (B) the Voting Trust; or (2) the revocation or attempted
revocation of any Shareholder's Proxy or the Voting Trust, including
without limitation, the delivery of any notice to the Purchaser in
respect of any such Shareholder's Proxy or the Voting Trust with
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the intent or effect to revoke such Shareholder's Proxy or the Voting
Trust, or any other act (by any party other than the Purchaser) that has
the intended or unintended effect of revoking a Shareholder's Proxy or
the Voting Trust; or (3) the breach of, default of or other failure to
comply with or failure to perform any material term or condition by any
party other than the Purchaser of any Shareholder's Proxy, the Voting
Trust or Section 6.15 of the Stock Purchase Agreement.
(v) A "Prohibiting Event" shall mean (x) any judgment, order or ruling
prohibiting, enjoining or restraining the consummation of a Closing, a
PharMerica Business Combination or a Business Combination Meeting; or (y) the
receipt of an opinion of the Canadian Seller's counsel that the purchase of
PharMerica Stock contemplated by the applicable Exercise Notice cannot be
consummated unless further action is taken under or in connection with the HSR
Act (as defined herein).
(c) Closing. On the Closing Date, unless there shall then be in effect a
Prohibiting Event, the Closing shall occur and (i) each PharMerica Shareholder
receiving an Exercise Notice (a "Selling Shareholder") shall sell, transfer,
convey, assign and deliver unto the Purchaser, all of such PharMerica
Shareholder's right, title and interest in and to the shares of PharMerica Stock
specified for purchase in such Exercise Notice together with an irrevocable
proxy appointing the Purchaser to vote such PharMerica Stock in the manner
determined by the Purchaser in its sole discretion, and (ii) the Purchaser shall
purchase and acquire all such right, title and interest in and to such shares of
PharMerica Stock. In consideration of the aforesaid sale, transfer, conveyance,
assignment and delivery, the Purchaser shall deliver or cause to be delivered to
each Selling Shareholder the Purchase Price for the PharMerica Stock acquired
from such Selling Shareholder in immediately available funds by wire transfer to
a bank account designated by such Selling Shareholder at or before the Closing,
or by certified check to such Selling Shareholder at the Closing. If a
Prohibiting Event shall occur and prevent the occurrence of a Closing under this
Section 2(c), then, subject to Section 3(b), at the Purchaser's election, the
Closing shall either (a) be postponed until such time as the Purchaser shall
determine in its sole discretion, but in no event sooner than the first date on
which there would no longer be a Prohibiting Event in effect and in no event
later than the Expiration Time, or (b) be canceled. No Closing shall occur with
respect to the PharMerica Stock that is disposed of prior to the Closing Date in
accordance with Section 6.15 of the Stock Purchase Agreement.
(d) Transfer Documents. The sale of the PharMerica Stock pursuant to
this Agreement shall be effected by the delivery at the Closing by each Selling
Shareholder to the Purchaser (i) as the Voting Trustee (or the current successor
thereto) under the Voting Trust, if it be such and if the Shares of PharMerica
Stock are held in the Voting Trust at that time, of written authorization to
release from the Voting Trust and deliver to the Purchaser in its corporate
capacity, and not as Voting Trustee, the shares of PharMerica Stock then
purchased hereunder by the Purchaser, (ii) of an irrevocable
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proxy appointing the Purchaser to vote the PharMerica Stock, in the form of the
proxies set forth in Exhibits A-1 and A-2, as applicable, annexed hereto and
made a part hereof, and (iii) of such other appropriate instruments of sale,
transfer, conveyance, assignment and delivery, including without limitation,
stock powers duly endorsed in blank, powers of attorney, and instructions to any
applicable voting trustee then holding such shares in trust, and such other
documents and instruments as the Purchaser may reasonably require to effect the
sale, transfer, conveyance, assignment and delivery of such shares.
Section 3. Conditions and Covenants.
(a) HSR. The parties acknowledge that (i) depending upon the number of
shares of PharMerica Stock to be acquired pursuant to the terms of a particular
Election Notice, the consummation of a Closing may be precluded until such time
as the requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), are satisfied, (ii) Purchaser will pay any filing
fees associated with such HSR Act filing.
(b) Rescission. The sale, transfer, conveyance, assignment and delivery
to the Purchaser of the PharMerica Stock pursuant to Section 2(c) may be
rescinded by the PharMerica Shareholders or the Purchaser if either of the
following events occur: (i) the PharMerica Stock acquired pursuant to Section
2(c) is voted at the Business Combination Meeting in accordance with the last
written instructions delivered by the Purchaser to Canadian Seller at or before
the Business Combination Meeting; or (ii) the outcome of the vote at the
Business Combination Meeting is the intended outcome specified in the last
written instructions delivered by the Purchaser to Canadian Seller at or before
the Business Combination Meeting.
(c) Subsequent Purchases. If the Purchaser (or any of its wholly owned
or majority owned subsidiaries) acquires shares of PharMerica Stock pursuant to
Section 2(c) and, during the Operative Period, acquires any other shares of
PharMerica Stock at a price per share that is higher than the price per share
paid by the Purchaser pursuant to Section 2(c) (the "Exercise Price"), the
Purchaser shall pay to the PharMerica Shareholders an amount equal to the
Differential Price multiplied by the number of shares of PharMerica Stock
acquired by the Purchaser pursuant to Section 2(c), such amount to be allocated
between the PharMerica Shareholders in proportion to the relative number of
shares of PharMerica Stock sold by each such entity pursuant to Section 2(c).
For purposes of this Section 3(c), (w) the term "Highest Price" shall mean the
highest price (excluding assumed liabilities and valuing any non-cash asset at
its fair market value, it being understood that any dispute with respect to such
fair market value shall be resolved by a valuation firm mutually acceptable to
the Purchaser and the PharMerica Shareholders) per share paid by the Purchaser
(or any of its wholly owned or majority owned subsidiaries) for any shares of
PharMerica Stock during the Operative Period, (x) the term "Differential Price"
shall mean the amount by which the Highest Price exceeds the Exercise Price, (y)
the term "Operative Period" shall mean
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the period commencing on the date hereof and expiring on the date that the
current term of the PharMerica/Purchaser Agreement terminates or expires and (z)
the term "PharMerica/Purchaser Agreement" shall mean the existing pharmaceutical
supply agreement between PharMerica and the Purchaser pursuant to which
PharMerica purchases pharmaceuticals on a wholesale basis from Purchaser.
(d) Subsequent Sales. If the Purchaser (or any of its wholly owned or
majority owned subsidiaries) acquires shares of PharMerica Stock pursuant to
Section 2(c) and, during the Operative Period, sells any or all of such shares
(the "Sold Shares") to an individual or entity that is not affiliated with the
Purchaser at a price per share (excluding assumed liabilities and valuing any
non-cash asset at its fair market value, it being understood that any dispute
with respect to such fair market value shall be resolved by a valuation firm
mutually acceptable to the Purchaser and the PharMerica Shareholders) (such
price, the "Sale Price") that is greater than the Exercise Price, the Purchaser
shall pay to the PharMerica Shareholders (such payment to be allocated between
the PharMerica Shareholders in proportion to the relative number of shares of
PharMerica Stock sold by each such entity pursuant to Section 2(c)) an amount
equal to the amount, if any, by which the Stock Appreciation exceeds the Net
Carrying/Tax Costs. For purposes of this Agreement, (w) the term "Stock
Appreciation" shall mean the Profit multiplied by the number of Sold Shares, (x)
the term "Profit" shall mean the amount by which the Sale Price exceeds the
Exercise Price (or, if the Purchaser has paid to the PharMerica Shareholders any
amount pursuant to Section 3(c), the sum of the Exercise Price and the per share
amount paid by the Purchaser pursuant to Section 3(c)) and (y) the term
"Carrying/Tax Costs" shall mean the sum of (i) interest on the amount paid by
the Purchaser pursuant to Section 2(c), from the date of the Closing to the date
on which the Sold Shares are sold, at an implied interest rate equal to the
weighted average interest rate paid by the Purchaser on bank borrowings during
such period and (ii) all federal and state taxes payable by the Purchaser with
respect to the sale of the Sold Shares (provided that the Purchaser uses
commercially reasonable efforts to minimize its tax liability with respect to
such sale), and (z) the term "Net Carrying/Tax Costs" shall mean the difference
between the Carrying/Tax Costs and the amount of any dividends or distributions
paid by the Purchaser on the Sold Shares during the period from the date of the
Closing to the date they are sold.
(e) Further Assurances. If the Purchaser exercises the Option and such
exercise is not rescinded pursuant to Section 3(b), from time to time
thereafter, each of the PharMerica Shareholders shall execute and deliver all
such further documents and instruments and take all such further action as may
be necessary in order to consummate the transactions contemplated hereby.
Section 4. Specific Performance. Each of the PharMerica Shareholders
acknowledges and agrees that monetary damages are an inadequate remedy for
breach of this Agreement. Therefore, each PharMerica Shareholder agrees that the
Purchaser has the right and shall be entitled to, in addition to any other right
it may have, specific performance of this Agreement in the event of any such
breach.
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Section 5. Expenses. Each party hereto shall pay its own expense
incurred in connection with the exercise of the Option and the enforcement of
its own rights under this Agreement.
Section 6. Counterparts. This Agreement may be executed in one more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one agreement.
Section 7. Headings. The descriptive headings contained herein are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 8. Notices. Any notice given hereunder shall be in writing and
shall be addressed to the parties at their respective addresses set forth in the
Stock Purchase Agreement, or at such other address as any such party may
hereafter designate by notice as provided for in this Section 8. Notices given
in accordance with the preceding sentence shall be deemed to have been duly
given when personally delivered, when transmitted by facsimile, the next
delivery day after deposit with a nationally recognized overnight courier
service providing receipted delivery, or three (3) calendar days after being
mailed by registered or certified mail to the party entitled to receive the
same.
Section 9. Entire Agreement. This Agreement (as supplemented by the
Voting Trust, the Proxy and the Stock Purchase Agreement) constitutes the entire
agreement among the parties hereto pertaining to the subject matter hereof and
supersedes all other prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties. There are
no other agreements between the parties in connection with the subject matter
hereof except as specifically set forth herein.
Section 10. Governing Law; Consent to Jurisdiction. This Agreement shall
be governed by, and construed in accordance with, the internal laws of the State
of Delaware, without reference to the choice of law principles thereof. Each of
the parties hereto irrevocably submits to the exclusive jurisdiction of the
courts of the State of Delaware and the United States District Courts for the
District of Delaware for the purpose of any suit, action, proceeding or judgment
relating to or arising out of this Agreement and the transactions contemplated
hereby, and each such party further agrees that such courts shall be the only
courts in which any suit, action or proceeding hereunder shall be brought.
Section 11. Assignment; Successors and Assigns; No Third Party Rights.
This Agreement is personal to each PharMerica Shareholder and shall not be
assigned by any of the PharMerica Shareholders and any attempt at assignment by
any PharMerica Shareholder shall be null and void. This Agreement may be freely
assigned by the
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Purchaser to any affiliate of the Purchaser. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors, permitted assigns and legal representatives, provided that it shall
not be binding upon the subsequent holders of PharMerica disposed of in
accordance with Section 6.15 of the Stock Purchase Agreement. This Agreement
shall be for the sole benefit of the parties hereto and their respective
successors, permitted assigns and legal representatives and is not intended, nor
shall it be construed, to give any person other than the parties hereto and
their respective successors, permitted assigns and legal representatives any
legal or equitable right, remedy or claim.
Section 12. Amendment and Modification; Waiver. This Agreement shall not
be amended or modified except by a writing signed by the party against whom
enforcement of such amendment or modification is sought. Any of the terms or
conditions of this Agreement shall not be waived at any time by the party
entitled to the benefit thereof, except by a writing signed by the party waiving
such terms or conditions.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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<PAGE> 9
Section 13. No Strict Construction. Each of the parties hereto
acknowledges that this Agreement has been prepared and negotiated jointly by the
parties hereto and their respective counsel, and this Agreement shall not be
strictly construed against either party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COUNSEL CORPORATION
By:_________________________________
Name:
Title:
COUNSEL HEALTHCARE ASSETS, INC.
By:_________________________________
Name:
Title:
BERGEN BRUNSWIG CORPORATION
By:_________________________________
Name:
Title:
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<PAGE> 10
EXHIBIT A-1
IRREVOCABLE PROXY
The undersigned hereby appoints Bergen Brunswig Corporation (its
successors and assigns) ("BBC"), acting through one of its duly authorized
officers, as proxy, with full power of substitution, to vote all of the shares
of common stock, par value $.01 per share, of PharMerica, Inc. ("PharMerica
Stock") held of record in the name of the undersigned on the date of such vote
(either by vote at a meeting of the stockholders of PharMerica, and at any
adjournments or postponements thereof, solicitation of proxies, solicitation of
consents or otherwise), in all votes of the stockholders of PharMerica, Inc.
("PharMerica").
The undersigned expressly acknowledges that BBC may vote the PharMerica
Stock in the sole discretion of BBC, without regard to any instructions, written
or otherwise, that may be given by the undersigned or received by BBC in respect
of such vote. The undersigned further acknowledges that its attendance at any
such vote of the stockholders shall not affect the validity of this Proxy. This
Proxy is coupled with an interest in the PharMerica Stock that is the subject of
this Proxy by reason of the post-record date acquisition by BBC of such
PharMerica Stock and the pending transfer thereof on the books and records of
PharMerica into the name of BBC. This Proxy shall remain valid until 11:59 p.m.
Eastern Standard Time, December 31, 2001.
COUNSEL CORPORATION
By:
Name:
Title:
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<PAGE> 11
EXHIBIT A-2
IRREVOCABLE PROXY
The undersigned hereby appoints Bergen Brunswig Corporation (its
successors and assigns) ("BBC"), acting through one of its duly authorized
officers, as proxy, with full power of substitution, to vote all of the shares
of common stock, par value $.01 per share, of PharMerica, Inc. ("PharMerica
Stock") held of record in the name of the undersigned on the date of such vote
(either by vote at a meeting of the stockholders of PharMerica, and at any
adjournments or postponements thereof, solicitation of proxies, solicitation of
consents or otherwise), in all votes of the stockholders of PharMerica, Inc.
("PharMerica").
The undersigned expressly acknowledges that BBC may vote the PharMerica
Stock in the sole discretion of BBC, without regard to any instructions, written
or otherwise, that may be given by the undersigned or received by BBC in respect
of such vote. The undersigned further acknowledges that its attendance at any
such vote of the stockholders shall not affect the validity of this Proxy. This
Proxy is coupled with an interest in the PharMerica Stock that is the subject of
this Proxy by reason of the post-record date acquisition by BBC of such
PharMerica Stock and the pending transfer thereof on the books and records of
PharMerica into the name of BBC. This Proxy shall remain valid until 11:59 p.m.
Eastern Standard Time, December 31, 2001.
COUNSEL HEALTHCARE ASSETS, INC.
By:
Name:
Title:
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EXHIBIT 2.4
VOTING TRUST
VOTING TRUST AGREEMENT, dated as of , 1998, by and among
Counsel Corporation, an Ontario corporation (the "Canadian Seller"), Counsel
Healthcare Assets, Inc., a Delaware corporation ("CHA", and together with the
Canadian Seller, the "Stockholders"), and Bergen Brunswig Corporation, a New
Jersey corporation, its successors in trust, as voting trustee (in such
capacity, the "Voting Trustee").
RECITALS
WHEREAS, the Stockholders are the legal and beneficial owners of the number
of shares, indicated on Schedule 1 hereto, of common stock, par value $.01 (the
"PharMerica Stock"), of PharMerica, Inc. (the "Corporation"), which shares
constitute on the day hereof, approximately 8% of the issued and outstanding
PharMerica Stock; and
WHEREAS, the Canadian Seller, Bergen Brunswig Corporation, Stadtlander Drug
Co., Inc., a Pennsylvania corporation, and another subsidiary of the Canadian
Seller have entered into a certain Stock Purchase Agreement, dated as of
November 8, 1998 (the "Stock Purchase Agreement"), pursuant to which the
Stockholders have agreed that the Voting Trustee shall be empowered to exercise
the Stockholders' rights to direct the vote of their PharMerica Stock upon the
circumstances described herein;
NOW, THEREFORE, the parties hereto herby agree that a voting trust with
respect to the shares of PharMerica Stock now owned (or received as a dividend
on such shares) by each of the Stockholders is hereby created and established,
subject to the terms and conditions of this Agreement (the "Voting Trust"), and
further agree as follows:
SECTION 1. Registration of Voting Trust Stock. Simultaneously with the
execution of this Agreement, the Stockholders shall deposit with the Voting
Trustee all of the shares of PharMerica Stock owned by each of them by delivery
to the Voting Trustee of certificates representing such shares of PharMerica
Stock, together with stock powers, duly endorsed in blank, transferring such
certificates to the Voting Trustee. The Voting Trustee is fully authorized to
take such action as is necessary to effect the transfer of such shares of
PharMerica Stock to, and in the name of, the Voting Trustee on the books of the
Corporation (and also to cause any further transfers of such shares to be made
which become necessary through any change of the entities holding the office of
Voting Trustee, as hereinafter provided). The Voting Trustee shall file
duplicates of this Agreement with the Secretary of the Corporation and the
registered office of the Corporation in the State of Delaware. The certificates
for the
<PAGE> 2
PharMerica Stock transferred and delivered to the Voting Trustee pursuant to
this Agreement shall be surrendered by the Voting Trustee to the Corporation and
canceled, and new certificates therefor shall be issued to and held by the
Voting Trustee in the name of the Voting Trustee (in its capacity as such)
(such shares of PharMerica Stock and any other shares of PharMerica Stock that
may in the future be deposited in the voting Trust being referred to herein as
the "Voting Trust Stock"). Upon receipt by the Voting Trustee of the
certificates for such shares of PharMerica Stock and upon the transfer of such
shares of PharMerica Stock into the name of the Voting Trustee, the Voting
Trustee shall hold the Voting Trust Stock, as stockholder of record, subject to
the terms and conditions of this Agreement. The Voting Trustee shall request
the Corporation to state in the stock ledger of the Corporation that the shares
of PharMerica Stock transferred or issued to the Voting Trustee were
transferred or issued pursuant to this Agreement.
SECTION 2. Stock Certificates. On all certificates representing Voting
Trust Stock, in addition to any other legend that may be required, the following
legend shall be appended:
The shares of Common Stock evidenced by this stock certificate
are subject to certain restrictions, including restrictions on
voting and on transfer, contained in the Voting Trust Agreement,
dated as of _______________, 199_, among Counsel Corporation,
Counsel Healthcare Assets, Inc. and Bergen Brunswig Corporation,
as voting trustee, and are issued pursuant to such Voting Trust
Agreement. By accepting this stock certificate, the holder hereof
agrees to be bound by all of the provisions of such Voting Trust
Agreement, which is available for inspection by the holder hereof
daily at the registered office of the Corporation in the State of
Delaware during regular business hours.
SECTION 3. Issuance of Voting Trust Certificates. The Voting Trustee
shall issue to each of the Stockholders, in exchange for the Voting Trust Stock
delivered hereunder, a voting trust certificate substantially in the form
attached as Exhibit A hereto (a "Voting Trust Certificate"). Except as otherwise
provided herein, all options, rights of purchase and other powers and privileges
affecting the Voting Trust Stock represented by a Voting Trust Certificate shall
attach to such Voting Trust Certificate.
SECTION 4. Voting of the Voting Trust Stock.
(a) The Voting Trustee shall have the exclusive right to exercise, in
person or by its nominees or proxies or by written consent, all voting rights
and powers granted under the Delaware General Corporation Law (the "DGCL") in
respect of all Voting Trust Stock deposited hereunder, and to take part in,
or consent to, any corporate or stockholder action of any kind whatsoever
permissible under the DGCL (including, without limitation, calling such meetings
and taking such other actions as
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<PAGE> 3
may be permitted under the Corporation's Certificate of Incorporation and
By-laws).
(b) Except as provided in Section 4(d) below, the Voting Trustee shall
vote the Voting Trust Stock (or act by written consent) on all matters in
accordance with the written instructions of the holder of Voting Trust
Certificates relating to such Voting Trust Stock, or, if no such written
instructions are obtained, vote "abstain".
(c) Intentionally omitted.
(d) In the event that the shareholders of the Corporation are asked to
vote or grant consents with respect to a PharMerica Business Combination (as
defined in the Stock Purchase Agreement), the Voting Trustee shall vote the
Voting Trust Stock (or act by written consent) with respect to such vote in the
manner and to the extent that it shall determine in its sole discretion,
regardless of any instructions that may be given by the holders of the Voting
Trust Certificates to, or otherwise received by, the Voting Trustee.
(e) The holders of the Voting Trust Certificates agree that (i) in voting
the Voting Trust Stock, the Voting Trustee shall incur no liability in its
capacity as such except for its willful failure or a failure resulting from its
lack of exercise of reasonable diligence to comply with the terms of this
Agreement as trustee hereunder, and (ii) to the fullest extent permitted by
law, neither the Voting Trustee, nor any officer, director, employee or agent
of the Voting Trustee, shall be liable for the consequence of any vote cast, or
consent given by the Voting Trustee, or any other action taken or omitted to be
taken by the Voting Trustee, except for any such liability resulting from its
willful failure or a failure resulting from its lack of exercise of reasonable
diligence to comply with the terms of this Agreement as trustee hereunder.
SECTION 5. Transfers of Certificates.
(a) The holders of the Voting Trust Certificates shall not transfer the
Voting Trust Certificates other than (i) to any entity that is a direct or
indirect wholly owned subsidiary of the Canadian Seller, or (ii) with the
consent of the Voting Trustee, which consent shall not be unreasonably
withheld. If, prior to the Expiration Time (as hereinafter defined), either of
the holders of the Voting Trust Certificates notify the Voting Trustee that
such holder desires to offer, sell, pledge or transfer any shares of the Voting
Trust Stock of which it is the beneficial owner in a manner that is not
precluded by Section 6.15 of Stock Purchase Agreement and tenders to the Voting
Trustee for cancellation the Voting Trust Certificates associated with the
shares of Voting Trust Stock to be so transferred, the Voting Trustee shall
promptly cause such shares of Voting Trust Stock to be transferred into the
name of such holder and upon consummation of such transfer, such shares of
Voting Trust Stock shall cease to be governed by the terms of this Agreement.
(b) If any mutilated Voting Trust Certificate is surrendered to the Voting
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Trustee, or the Voting Trustee receives evidence to its satisfaction that any
Voting Trust Certificate has been destroyed, lost or stolen, and upon proof of
ownership satisfactory to the Voting Trustee together with such security or
indemnity as may be requested, in the case of destroyed, lost or stolen Voting
Trust Certificates, by the Voting Trustee to save it harmless, the Voting
Trustee shall execute and deliver a new Voting Trust Certificate for the same
number of shares of Voting Trust Stock as the Voting Trust Certificate so
mutilated, destroyed, lost or stolen, with such notations, if any, as the
Voting Trustee shall determine.
(c) Prior to due presentment of a Voting Trust Certificate for transfer in
compliance with the requirements of Section 5(a), the Voting Trustee may treat
the registered holder of any Voting Trust Certificate as the owner thereof for
all purposes whatsoever, and the Voting Trustee shall not be affected by notice
to the contrary.
SECTION 6. Termination.
(a) The Voting Trust created hereby shall terminate on the earliest of (i)
11:59 p.m. Eastern Standard Time, December 31, 2001 (the "Expiration Time"),
(ii) the date on which the consummation of a PharMerica Business Combination
occurs, (iii) the delivery to the holders of the Voting Trust Certificates and
the Corporation of a written notice duly executed by the Voting Trustee
expressly terminating the Voting Trust, and (iv) the first date on which the
Voting Trustee shall no longer hold any Voting Trust Stock.
(b) Upon the termination of this Voting Trust, the Voting Trust
Certificates representing the Voting Trust Stock shall be deemed canceled and,
upon the surrender of such certificates to the Voting Trustee, the Voting
Trustee shall deliver the certificates representing the Voting Trust Stock
relating to such Voting Trust Certificates duly endorsed by the Voting Trustee
for transfer to the transferee of the relevant Voting Trust Certificate.
SECTION 7. Extension.
(a) The duration of this Agreement may be extended by an instrument in
writing, signed by the holders of the Voting Trust Certificates and the Voting
Trustee.
(b) If this Agreement shall be extended pursuant to Section 7(a), the
Voting Trustee shall file a copy of the instrument effecting such extension
with the Secretary of the Corporation and in the registered office of the
Corporation in the State of Delaware.
SECTION 8. Dividends. The Voting Trustee shall not be entitled to retain
any dividends or other distributions of cash or other property or securities
(other than PharMerica Stock), if any, with respect to the Voting Trust Stock
and such distributions (other than distributions of PharMerica Stock), if any,
shall be paid by the Voting
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Trustee to the registered holders of the Voting Trust Certificates immediately
upon receipt by the Voting Trustee. Any distributions paid in PharMerica Stock
shall be deposited into the Voting Trust and a Voting Trust Certificate shall
be delivered to the beneficial owner of such PharMerica Stock evidencing such
deposit.
SECTION 9. Compensation of Voting Trustee. The Voting Trustee acknowledges
that it shall not be entitled to receive a fee from the holders of the Voting
Trust Certificates with respect to its services hereunder.
SECTION 10. Successor Voting Trustee. The Voting Trustee may resign at any
time by giving written notice 30 days prior to the date of such resignation to
the holders of the Voting Trust Certificates. The resigning Voting Trustee is
hereby authorized to appoint a successor Voting Trustee, which shall be a direct
or indirect wholly owned subsidiary of the resigning Voting Trustee with assets
of not less than $500,000,000. Upon the acceptance in writing by a successor
Voting Trustee of any appointment as Voting Trustee hereunder and the agreement
in writing of such successor Voting Trustee to be bound by the obligations
contained in this Agreement, (i) the retiring Voting Trustee shall give written
notice to (a) the Corporation of its retirement, and direct that all notices due
to it by virtue of its position as Voting Trustee should be sent to the
successor Voting Trustee and (b) to the holders of the Voting Trust Certificates
providing the name, address and contact person at the successor Voting Trustee,
and (ii) such successor Voting Trustee shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Voting Trustee and
such successor Voting Trustee shall deliver to the Corporation written notice of
its acceptance of the position of Voting Trustee, and (iii) upon (but only upon)
such acceptance, the retiring Voting Trustee shall be discharged from further
responsibilities under this Agreement provided that the retiring Voting Trustee
shall not be relieved of any liability incurred hereunder prior to such
acceptance by its successor.
SECTION 11. Concerning the Trustee
(a) The Voting Trustee shall have all requisite power, authority and
discretion as shall be necessary or appropriate to enable it to take all such
actions as it is required to take pursuant to this Agreement. The Voting Trustee
shall have no liability hereunder except for its willful failure or a failure
resulting from its lack of exercise of reasonable diligence to comply with the
terms of this Agreement as trustee hereunder.
(b) The Voting Trustee shall be protected and shall incur no liability for,
or in respect of, any action taken or omitted to be taken or anything suffered
by it in reliance upon any notice, discretion, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be genuine and
to have been presented or signed by the proper parties.
(c) The Voting Trustee shall be obligated to perform such duties and
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only such duties as are herein specifically set forth, and no implied duties or
obligations shall be read into this Agreement except to the extent the same
shall inure to the benefit of the Voting Trustee. The Voting Trustee shall not
be under any obligation to take any action hereunder for which it may incur any
expense or liability unless (i) it is otherwise expressly obligated to take
such action hereunder at its own expense or liability or (ii) in its reasonable
opinion, it believes it should but will not be reimbursed in accordance with
this Agreement.
SECTION 12. Indemnification. [Intentionally omitted.]
SECTION 13. Other Obligations of the Voting Trustee.
(a) The Voting Trustee shall file a copy of this Agreement in the
registered office of the Corporation in the State of Delaware. The Voting
Trustee shall request that such office keep such copy open to the inspection of
any stockholder of the Corporation, or any holder of a Voting Trust
Certificate, daily during business hours.
(b) The Voting Trustee shall give written notice to the holders of the
Voting Trust Certificates if a meeting of the Corporation's stockholders is
called at which the Voting Trustee shall be asked to vote, or if in lieu of
such meeting the Voting Trustee shall be asked to act by written consent, on
any corporate action requiring approval of the Corporation's stockholders.
SECTION 14. No Legal Title to Voting Trust Stock in Holders of Voting
Trust Certificates. The holders of Voting Trust Certificates shall not have
legal title to any part of the Voting Trust Stock and, except as contemplated by
Section 5, shall not be entitled to transfer or convey any interest in
(including, without limitation, any encumbrance on) the Voting Trust Stock. No
creditor of any holder of a Voting Trust Certificate shall be able to obtain
legal title to or exercise legal or equitable remedies with respect to the
Voting Trust Stock. Except as expressly provided for herein or in the Stock
Purchase Agreement, no transfer, by operation of law or otherwise, of any right,
title and interest of any holder of a Voting Trust Certificate in and to its
undivided beneficial interest in the Voting Trust Stock or hereunder shall
operate to terminate this Agreement or the Voting Trust or entitle any successor
of any holder of a Voting Trust Certificate to an accounting or to the transfer
to it of any legal title to any part of the Voting Trust Stock.
SECTION 15. Beneficiaries. Nothing in this Agreement, whether express or
implied, shall be construed to give any person other than the Voting Trustee or
the holders of the Voting Trust Certificates any right in the Voting Trust Stock
or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 16. Assignment. Except as expressly provided in Section 5, no
assignment or transfer of any interest, right or obligation of any holder of a
Voting Trust Certificate under this Agreement shall be allowed and any such
assignment or
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transfer in contravention hereof shall be void and of no effect.
SECTION 17. Amendments. This Agreement may not be amended, supplemented or
otherwise modified except in a writing signed by the Voting Trustee and all of
the holders of the Voting Trust Certificates. If this Agreement shall be
amended, the Voting Trustee shall file a copy of the instrument effecting such
amendment in the registered office of the Corporation in the State of Delaware.
SECTION 18. Notices. All notices, consents, approvals and other
communications given or made pursuant hereto shall be in writing and shall be
(a) delivered personally against receipt thereof, (b) sent by overnight
courier, (c) transmitted by telecopier or (d) sent by registered or certified
mail (postage prepaid, return receipt requested), in each case to the parties
at the following addresses (or at such other address for a Party as shall be
specified by like notice):
(a) if to any holder of a Voting Trust Certificate, at the address for
such holder specified in the record of beneficial owners maintained by the
Voting Trustee.
(b) if to the Voting Trustee, to the following address:
4000 Metropolitan Drive
Orange, CA 92668
Attn: Milan A. Sawdei, Esq.
Chief Legal Officer and Secretary
All such notices, consents, approvals and other communications shall be deemed
to have been given on (x) the date of receipt if delivered personally or by
overnight courier, (y) the date of transmission with confirmation answerback if
transmitted by telecopier or (z) the third business day following posting if
sent by mail.
SECTION 19. Interpretation. The terms defined in this Agreement include
the plural as well as the singular. When a reference is made in this Agreement
to a Section, Schedule or Exhibit, such reference shall be to a Section,
Schedule or Exhibit of this Agreement unless otherwise indicated. The headings
contained herein are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
SECTION 20. Severability. If any provision of this Agreement shall be held
to be invalid, illegal or unenforceable, in whole or in part, under the laws of
the State of Delaware, such invalidity, illegality or enforceability shall not
in any way whatsoever affect the validity of the other provisions of this
Agreement and such other provisions shall remain in full force and effect.
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<PAGE> 8
SECTION 21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. One or more counterparts
of this document may be delivered via telecopier, with the intention that they
shall have the same effect as an original, executed counterpart hereof.
SECTION 22. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF
THE LAWS THAT MIGHT BE APPLIED UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
EACH OF THE PARTIES HERETO AGREES THAT ANY LEGAL ACTION BETWEEN OR AMONG THE
PARTIES RELATING TO THE ENTRY INTO OR PERFORMANCE OF THIS AGREEMENT, OR THE
INTERPRETATION OR ENFORCEMENT OF THE TERMS HEREOF, SHALL BE BROUGHT ONLY IN A
STATE COURT LOCATED IN NEW CASTLE COUNTY, DELAWARE, HAVING JURISDICTION OF THE
SUBJECT MATTER THEREOF, AND EACH PARTY IRREVOCABLY CONSENTS TO PERSONAL
JURISDICTION IN ANY SUCH STATE COURT, WAIVES ANY RIGHT TO OBJECT TO SUCH VENUE
OR TO ASSERT THE DEFENSE OF FORUM NON-CONVENIENS, AND AGREES THAT SERVICE OF
PROCESS MAY BE MADE BY CERTIFIED OR REGISTERED MAIL ADDRESSED TO SUCH PARTY AT
ITS ADDRESS SET FORTH IN, OR DETERMINED IN ACCORDANCE WITH, SECTION 18 HEREOF.
SECTION 23. Representations. Each of the parties hereto represents that
this Agreement has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
SECTION 24. Definitions. When used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" has the meaning specified in Section 10.
"PharMerica Stock" has the meaning specified in the Recitals.
"Corporation" has the meaning specified in the Recitals.
"DGCL" has the meaning specified in Section 4.
"Stockholder" means Counsel and CHA.
"Voting Trust" has the meaning specified in the Recitals.
"Voting Trust Certificate" has the meaning specified in Section 3.
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<PAGE> 9
"Voting Trustee" has the meaning specified in the introductory paragraph
hereof.
"Voting Trust Stock" has the meaning specified in Section 1.
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<PAGE> 10
IN WITNESS WHEREOF, the Voting Trustee and each of the Stockholders have
duly executed this Voting Trust Agreement as of the day and the year first
above written.
COUNSEL CORPORATION,
Stockholder
By:
Name:
Title:
COUNSEL HEALTHCARE ASSETS, INC.
Stockholder
By:
Name:
Title:
BERGEN BRUNSWIG CORPORATION
Voting Trustee
By:
Name:
Title:
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<PAGE> 11
SCHEDULE I
<TABLE>
<CAPTION>
STOCKHOLDER NO. OF SHARES CERTIF. NO.
<S> <C> <C>
Counsel
CHA
</TABLE>
<PAGE> 12
EXHIBIT A
VOTING TRUST CERTIFICATE
IN RESPECT OF
COMMON STOCK OF PHARMERICA, INC.
No.
THIS IS TO CERTIFY THAT ___________________________________ or its
registered assigns on or after January 1, 2202, or upon the earlier termination
of the Voting Trust Agreement hereinafter referred to (the "Agreement"), upon
surrender of this Certificate, will be entitled to receive a certificate or
certificates for ______ shares of Common Stock, par value $.01 per share (the
"PharMerica Stock") of PharMerica Inc. (the "Corporation") (or, if prior to the
termination of the Agreement, the Corporation shall change the outstanding
shares of its PharMerica Stock into the same or a different number of shares of
stock or of the same or any other class or classes, a number of shares of such
class or classes of stock equivalent to such number which would have been issued
for the aforesaid number and classes of shares of PharMerica Stock); and until
such time is entitled to receive payments of any dividends or distributions
(other than such as shall be in the form of shares of the capital stock of the
Corporation having present or contingent voting power, which shall continue to
be held by the undersigned Trustee or any successors thereto (the "Trustee"))
received by the Trustee in respect of the aforesaid number and classes of shares
of PharMerica Stock.
Until the termination of the Agreement and the delivery of such stock
certificates, the Trustee shall have the full, exclusive and unqualified right
and power to vote and to execute consents and dissents with respect to all
shares of stock of the Corporation having voting power held by the Trustee, at
all meetings of stockholders of the Corporation (or written actions in lieu
thereof), for any purpose, whether annual or special, and generally to exercise
all the powers of an absolute owner thereof, subject only to the limitations and
restrictions which are set forth in the Agreement, including, without
limitation, Section 4 of the Agreement; it being expressly stipulated that,
except as specifically set forth in the Agreement, no voting right passes to the
holder hereof by or under this Certificate or by or under any agreement,
expressed or implied.
This Certificate is issued pursuant and is subject to all of the terms and
conditions of the Voting Trust Agreement, dated as of ________, __ 1998, by and
among Counsel Corporation, Counsel Healthcare Assets, Inc. and Bergen Brunswig
Corporation, as Trustee, the terms of which the holder hereof agrees and
consents to. A copy of the Agreement is on file in the registered office of the
Corporation in Delaware.
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<PAGE> 13
This Certificate and the rights and interests represented hereby are
transferable only on the books of the Trustee upon surrender hereof at the
principal business office of the Trustee, properly endorsed, subject to such
rules and requirements concerning transfers as the Trustee may from time to time
adopt, by the registered holder hereof in person or by attorney duly authorized.
IN WITNESS WHEREOF, the Trustee has executed this Certificate this day
of , 1998.
BERGEN BRUNSWIG CORPORATION,
Voting Trustee
By:
Name:
Title:
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