EXHIBIT 9.1
VOTING TRUST
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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 ▇▇▇▇▇▇▇▇ Corporation, a New
Jersey corporation, its successors in trust, as voting trustee (in such
capacity, the "Voting Trustee").
R E C I T A L S
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WHEREAS, the Stockholders are the legal and beneficial owners
of the number of shares, indicated on Schedule I 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 ▇▇▇▇▇▇▇▇ Corporation,
▇▇▇▇▇▇▇▇▇▇▇ 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 hereby 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 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 ▇▇▇▇▇▇▇▇ 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 may be permitted under the
Corporation's Certificate of Incorporation and By-laws).
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(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
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to the Voting 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
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Trust Stock and such distributions (other than distributions of PharMerica
Stock), if any, shall be paid by the Voting 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 Certificate 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, direction, 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 only such duties as are herein specifically set forth, and no implied
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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
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any such assignment or 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:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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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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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"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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IN WITNESS WHEREOF, the Voting Trustee and each of the
Stockholders have duly executed this Voting Trust Agreement as of the day and
year first above written.
COUNSEL CORPORATION,
Stockholder
By:___________________________________
Name:_________________________________
Title:________________________________
COUNSEL HEALTHCARE ASSETS, INC.,
Stockholder
By:___________________________________
Name:_________________________________
Title:________________________________
BERGEN ▇▇▇▇▇▇▇▇ CORPORATION,
Voting Trustee
By:___________________________________
Name:_________________________________
Title:________________________________
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SCHEDULE I
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Stockholder No. of Shares Certif. No.
----------- ------------- -----------
Counsel
CHA
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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, 2002, 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
▇▇▇▇▇▇▇▇ 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
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the Corporation in Delaware.
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 ▇▇▇▇▇▇▇▇ CORPORATION,
Voting Trustee
By:____________________________________
Name:__________________________________
Title:__________________________________
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