EXHIBIT 9.1
VOTING TRUST AGREEMENT
Dated September 30, 1994
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The parties to this agreement are Schein Holdings, Inc., a New York
corporation (the "Company"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the trust established by ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ under trust agreement dated December 31, 1993 ("Marvin's 1993 Trust"),
the trust established by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ under trust agreement dated September
9, 1994 ("Marvin's 1994 Trust"), ▇▇▇▇▇▇ ▇▇▇▇▇▇, the trust established by the
Trustees under Article Fourth of the Will of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ for the benefit of
▇▇▇▇▇▇ ▇▇▇▇▇▇ and her issue under trust agreement dated September 29, 1994 ("▇▇▇
▇▇▇▇▇▇'▇ Issue's Trust"), ▇▇▇▇▇▇ ▇▇▇▇▇▇, and the trust established by ▇▇▇▇▇▇
▇▇▇▇▇▇ under trust agreement dated September 28, 1994 ("▇▇▇ ▇▇▇▇▇▇'▇ Issue's
Trust") (collectively, the "Shareholders"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as voting
trustee (in such capacity and together with his successors designated in
accordance with section 5, the "Trustee").
The Shareholders own an aggregate of 184,590 shares of the Company's
common stock (the "Shares") and are parties to a general shareholders agreement
and a continuing shareholders agreement (the "Continuing Shareholders
Agreement"), each dated this date (collectively, the "Shareholders Agreements").
The parties agree as follows:
1. Shares Held in Trust.
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1.1 Transfer of Shares to Voting Trustee. Simultaneously with the
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execution of this agreement, (a) the Shareholders are delivering to the
secretary of the Company, for cancellation, stock certificates (together with
stock powers executed in blank) for the Shares, free and clear of any claim,
lien, security interest or other encumbrance (a "Lien"), other than Liens
imposed upon such Shares by the Shareholders Agreements and this agreement, and
(b) the Company is issuing and delivering to the Trustee a stock certificate for
184,590 shares of common stock of the Company, registered in the name of the
Trustee, in his capacity as such, and legended to indicate that such shares are
subject to this agreement (which fact also shall be stated in the stock ledger
of the Company). (The shares so issued to the Trustee, together with
any additional securities referred to in section 3, are referred to collectively
as the "Trust Shares.")
1.2 Voting Trust Certificates. Simultaneously with the execution of
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this agreement, the Trustee is issuing and delivering to each Shareholder a
trust certificate (a "Trust Certificate") for the number of shares delivered by
that Shareholder under section 1.1(a). The Trustee shall cause accurate records
to be kept setting forth the name and address of each holder of trust
certificates, the number of Trust Shares represented by each trust certificate,
any dividends or other payments or distributions made in respect of the Trust
Shares and
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transfers of Trust Shares permitted by this agreement. Such list and record
shall be open at all reasonable times to the inspection of the Company's
shareholders and the holder(s) of trust certificates. The trust certificates
shall be in the form of exhibit A.
1.3 Trustee to Hold Subject to Agreement. The Trustee shall hold
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and vote (including, for all purposes of this agreement, the giving of consent)
the Trust Shares in accordance with this agreement.
2. Authority of Trustee to Vote the Shares.
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2.1 Authority. The Trustee shall have full and exclusive power and
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authority to vote the Trust Shares in person or by proxy as set forth in section
2.2 (or to refrain from voting) at all meetings of the shareholders of the
Company or by written consent in lieu of such meetings, including, without
limitation, (a) for the election of directors, (b) with respect to matters as to
which the Trustee may have a conflict of interest (provided the Trustee
discloses to the board of directors of the Company and the Shareholders before
any such vote any direct or indirect material financial interest or other
material interest of the Trustee (other than solely by reason of his status as
an officer, director or shareholder of the Company or solely by reason of his
status as Trustee under this agreement) in any matter to be voted on (a
"Conflict Transaction")) and (c) with respect to all other matters for which
shares of the Company's common stock are
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entitled to vote. The Trustee shall use his best efforts to give the
Shareholders not fewer than 48 hours' prior written notice of any such meeting
or execution of any such written consent, the subject matter of the meeting or
consent, how he intends to vote (or abstain from voting) with respect to the
subject matter of the meeting or consent and, if applicable, a description in
reasonable detail of the nature of any Conflict Transaction that is the subject
matter of the meeting or consent. Notwithstanding anything to the contrary in
this section 2.1, (i) the Trustee may not, without the prior written consent of
holders of trust certificates or stock certificates representing a majority of
the sum of (A) the Trust Shares plus (B) shares of the Company's common stock
----
held by the Trustee or the Trustee's Permitted Transferees (as defined in the
Continuing Shareholders Agreement), vote in favor of (y) a merger or
consolidation of the Company with or into another entity (except for a merger of
the Company into a wholly-owned subsidiary solely for the purpose of effecting a
reincorporation of the Company as a Delaware corporation) or (z) a liquidation
or dissolution of the Company, or a sale, lease or other transfer, in one
transaction or a series of transactions, of all or substantially all the assets
of the Company (whether directly, or indirectly through the transfer of assets
of its subsidiaries) or of a Significant Business Unit (as defined below); and
(ii) (x) with respect to Conflict Transactions, the Trustee shall vote
consistently with the vote of the disinterested directors of the Company, (y) in
voting (or abstaining from voting) the Trust Shares, the Trustee shall be
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charged with the same duties of care and loyalty to the Company, as if the
Trustee were a director of a corporation considering a matter to be voted on by
the board of directors of that corporation, and (z) the Trustee shall not vote
the Trust Shares (1) in favor of the Company taking any action that would
violate the Shareholders Agreements or (2) with a view to affecting materially
and adversely any Shareholder's rights under this agreement or the Shareholders
Agreements (it being understood that nothing in this section shall in any manner
adversely affect the right of any Shareholder to assert against the Company a
claim that the Shareholder is entitled to damages resulting from any action
taken by the Company or the Trustee pursuant to any shareholder vote). For
purposes of this agreement, "Significant Business Unit" means a Significant
Subsidiary (as defined in Rule 1-02 of Regulation S-X) of the Company in respect
of which the condition specified in paragraph (c) of the definition of
significant subsidiary in Rule 1-02 of Regulation S-X exceeds 30%.
2.2 Other Matters. Subject to section 6.2, the Trustee's power to
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vote (or refrain from voting) the Trust Shares pursuant to this agreement shall
be irrevocable until the termination of this agreement in accordance with
section 6.1. The Trustee shall have the right to waive notice of any meeting of
shareholders of the Company, provided the Trustee gives each of the Shareholders
at least 10 days prior written notice (except in the case of extenuating
circumstances, in which case notice
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shall be given at the earliest practicable date) that the notice of meeting is
being or has been waived. The Trustee may exercise any power or perform any act
under this agreement by proxy or through an agent or attorney (it being
understood, however, that the Trustee may not confer discretionary authority on
any such proxy, agent or attorney).
2.3 No Disqualification. Nothing in this agreement shall be deemed
-------------------
to prevent the Trustee from serving the Company or any of its subsidiaries as an
officer, director, employee or in any other capacity and receiving compensation
for that service or from engaging in any transaction (subject, if appropriate,
to the requirements of section 2.1) or providing any service not otherwise in
contravention of this agreement.
2.4 No Authority to Transfer Shares. The Trustee shall have no power
-------------------------------
or authority to transfer the Trust Shares, except in accordance with section 7,
and any other transfer or attempted transfer shall be void and of no effect.
3. Additional Securities. Any stock certificates for any voting
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securities of the Company (or any successor (by merger or otherwise, other than
a successor resulting from a Terminating Merger (as defined in section 6.1)) to
all or substantially all of the business of the Company) issued by way of
dividend, stock split, recapitalization, reorganization, merger (other than a
Terminating Merger (as defined in section 6.1)), consolidation, conversion or
any other change or adjustment in respect of the
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Trust Shares shall be delivered by the Company to the Trustee, who shall hold
such securities in accordance with this agreement, and the Trustee shall,
immediately following receipt, issue and deliver, or cause to be issued and
delivered, trust certificates for such changed or additional securities to the
appropriate holder(s) of the trust certificates.
4. Dividends. Except as otherwise provided in section 3 with
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respect to voting securities, if the Company shall pay dividends on, or
distribute other securities or property in respect of, the Trust Shares, the
Company shall pay or distribute the same to the Trustee, who shall collect and
receive such dividends, other securities or property, and shall promptly, and in
no event later than five days after receipt, deliver such dividends, other
securities or property, without offset or deduction of any kind, to the
holder(s) of the then outstanding trust certificates in proportion to their
interests in the Trust Shares as shown on the books of the Trustee so that such
distribution is identical to the distribution each holder of a trust certificate
would have received had such person been the holder of record of the securities
represented by such trust certificate.
5. Appointment by Trustee of Successors.
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5.1 Voluntary Appointment. The Trustee may at any time resign as
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voting trustee and appoint a successor voting trustee meeting the qualifications
of section 5.3. The Trustee
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shall give prompt notice to each Shareholder of the identity of the successor
voting trustee.
5.2 Appointment Upon Death or Termination for Incapacity or Cause.
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In the event of the death or termination of employment with the Company for
mental or physical incapacity or cause (if the Trustee is party to an employment
agreement with the Company that defines those terms, as those terms are defined
in such employment agreement), or during the continuance of the inability to act
by reason of any such incapacity, of the Trustee, and, subject to sections 5.3
and 5.4, a successor to the voting trustee as designated in writing from time to
time by the Trustee shall automatically fill such vacancy as of such death,
termination or incapacity. Subject to section 5.1, the Trustee shall continue
to serve as such, if his employment with the Company is terminated for any
reason other than as specified in the preceding sentence.
5.3 Qualification of Successor. Any person appointed to serve as a
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successor voting trustee under this section 5 must have been prior to such
appointment a senior executive officer of the Company who shall have been
devoting substantially all his business time and effort to the Company, or must
have been a senior executive officer in the pharmaceutical or health-care
industry, in each such case for at least the immediately preceding six months,
provided that no such person shall have been an employee or director of ▇▇▇▇▇ ▇▇
or any of its majority-owned subsidiaries (including Miles Inc. ("Miles") or any
of its
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direct or indirect majority-owned subsidiaries) (all such subsidiaries of ▇▇▇▇▇
▇▇ being collectively called "Bayer Controlled Subsidiaries") (other than the
Company or any of its subsidiaries) at any time within six months prior to such
appointment or shall have been a party to a voting agreement with ▇▇▇▇▇ ▇▇ or
any Bayer Controlled Subsidiary, or otherwise a holder of, or an officer,
director or affiliate of a corporation (other than the Company or any of its
subsidiaries) that holds, more than 10% of the Company's outstanding common
stock.
5.4 Authority of Successor. Any person appointed to serve as a
----------------------
successor voting trustee under this section 5 shall be vested with all the
duties, obligations, powers and authority as if originally named voting trustee
and shall serve until the termination of this agreement in accordance with
section 6.1. Any person so appointed shall from and after the date of such
appointment be deemed the voting trustee for all purposes of this agreement.
5.5 Execution of Agreement. Any person appointed to serve as a
----------------------
successor voting trustee under this section 5 shall, prior to serving as such,
execute a copy of this agreement, the signature page of which shall specify that
such person is to be bound by all the terms of this agreement applicable to the
voting trustee.
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6. Termination of Agreement.
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6.1 Termination Date. This agreement shall terminate (the
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"Termination Date") on the earliest of (i) the fifth anniversary of the
Qualified Public Offering Date (as defined in the Continuing Shareholders
Agreement), (ii) March 1, 2000 and (iii) the effective date of a Terminating
Merger, and, subject to section 6.2, no sooner. For purposes of this agreement,
the term "Terminating Merger" means a merger, consolidation or combination of
the Company with another business, if, as a result of that transaction, the
Trustee neither (I) holds the position of chairman of the board, president,
chief executive officer or chief operating officer (or any office performing
analogous functions) of the merged, consolidated or combined entity (the
"Successor") nor (II) has the right or ability to designate a majority of the
members of the board of the Successor or, if the board of the Successor is a
classified board, can reasonably be expected to have the right or ability to
designate a majority of the members of the board of the Successor after each
class then in office shall have been subject to election.
6.2 Termination Upon Transfer of Shares. Notwithstanding anything in
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this agreement to the contrary, this agreement shall terminate with respect to
any Trust Shares transferred in accordance with section 7 at the time of the
transfer (except that this agreement shall not terminate with respect to any
Trust Shares prior to an initial public offering of the Company's common stock
and shall not terminate before or
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after such initial public offering with respect to any Trust Shares transferred
to a Permitted Transferee (as defined in the Continuing Shareholders Agreement),
until the Trust Shares are transferred by the Permitted Transferee in accordance
with section 7).
6.3 Transfer of Shares from Voting Trustee.
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(a) Upon the termination of this agreement in accordance with
section 6.1, (i) each holder of trust certificates shall promptly deliver to the
Trustee any outstanding trust certificates held by that holder (or an affidavit
stating that such trust certificates are lost, without any requirement to post
any security therefor), (ii) promptly thereafter, and in no event later than two
business days after receipt of such trust certificates or affidavits, as
applicable, the Trustee shall deliver to the secretary of the Company or, at the
direction of the Company, to the Company's transfer agent, for cancellation,
stock certificates (together with stock powers executed in blank and any
requisite stock transfer stamps) for all the Trust Shares held by the Trustee
and (iii) the Company shall cause to be issued to each holder of trust
certificates stock certificates for a number of shares of common stock of the
Company equal to the number of Trust Shares represented by the trust
certificates surrendered (or covered by an affidavit delivered) by each such
holder under clause (i) above, free and clear of any Lien (except (1) as
otherwise required by law, (2) as required under the Continuing
Shareholders Agreement or
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(3) as created by the holder of the trust certificates (collectively, "Permitted
Liens")) and without any legend (except any legend relating to transfer
restrictions arising under any applicable securities laws (an "Applicable
Securities Law Legend")). The Trustee and the Company shall take such actions as
reasonably may be requested by the holders of trust certificates to effect such
issuances.
(b) If the Trustee does not deliver stock certificates for the Trust
Shares to the Company or to the Company's transfer agent within the two-day
period set forth in section 6.3(a)(ii), the Company or the Company's transfer
agent, as applicable, shall, upon receipt of notice from any holder of trust
certificates stating that such Trust Shares have not been delivered within such
two-day period (a copy of which notice shall be delivered to the Trustee
simultaneously with the giving of such notice to the Company or to the Company's
transfer agent), cancel on the Company's books and records the stock
certificates for the undelivered Trust Shares, and cause to be issued to each
holder of trust certificates stock certificates for a number of shares of the
Company's common stock equal to the number of Trust Shares represented by the
trust certificates surrendered (or covered by an affidavit delivered) by each
such holder under section 6.3(a)(i), free and clear of any Lien (except
Permitted Liens) and without any legend (except any Applicable Securities Law
Legend).
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6.4 Death or Incompetence of Trust Certificate Holder. The death,
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disability or incompetence of a holder of a trust certificate during the term of
this agreement shall in no way affect the validity or enforceability of this
agreement.
7. Transfers of Trust Shares and Trust Certificates.
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7.1 Transfer of Trust Shares. Each holder of trust certificates may,
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by written request (a "Transfer Request"), direct the Trustee to transfer any
Trust Shares represented by that holder's outstanding trust certificates;
however, each such holder may direct the Trustee to transfer Trust Shares only
in accordance with and to the extent permitted under the Shareholders
Agreements. However, no transfer of Trust Shares to a Permitted Transferee
shall be permitted (and any such transfer not permitted shall be void and of no
effect), unless, prior to such transfer, the Permitted Transferee executes and
delivers to the Trustee a copy of this agreement, the signature page of which
shall specify that such Permitted Transferee is bound by and takes such Trust
Shares subject to all the rights and obligations under this agreement that were
applicable to the transferor (it being understood that, notwithstanding anything
to the contrary in this agreement, the Trustee shall retain possession of any
Trust Shares so transferred to a Permitted Transferee and shall issue to the
Permitted Transferee appropriate trust certificates in respect thereof).
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7.2 Transfer Mechanics.
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(a) In order to effect a transfer of Trust Shares at the request of a
holder of trust certificates in accordance with section 7.1, (i) such holder
shall deliver to the Trustee, along with the Transfer Request, any outstanding
trust certificates representing the Trust Shares to be transferred (or an
affidavit stating that such trust certificates are lost), (ii) the Trustee shall
promptly thereafter, and in no event later than two business days after receipt
of such trust certificates or affidavits, as applicable, deliver to the
secretary of the Company or, at the direction of the Company, to the Company's
transfer agent, for cancellation, stock certificates (together with stock powers
executed in blank and any requisite stock transfer stamps) for the number of
trust shares to be transferred, and (iii) the Company shall cause to be issued
to the transferee(s) specified in the Transfer Request stock certificates for
the number of shares of the Company's common stock equal to the number of Trust
Shares represented by the trust certificates surrendered under clause (i) above,
free and clear of any Lien (except Permitted Liens) and without any legend
(except any Applicable Securities Law Legend). The Trustee and the Company shall
take such actions as reasonably may be requested by the holders of trust
certificates surrendered under clause (i) of the preceding sentence to effect
the issuance as provided for in this section 7.2(a) of shares of the Company's
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common stock to, and in the name of, the transferee(s) specified in the Transfer
Request.
(b) If the Trustee does not deliver stock certificates for the number
of Trust Shares to be transferred to the Company or to the Company's transfer
agent within the two-day period set forth in section 7.2(a)(ii), the Company or
the Company's transfer agent, as applicable, shall, upon receipt of a written
request from the holder of trust certificates who requested the transfer
stating that such Trust Shares have not been delivered within such two-day
period (a copy of which request shall be delivered to the Trustee simultaneously
with the giving of such request to the Company or to the Company's transfer
agent), cancel on the Company's books and records the stock certificates for the
undelivered Trust Shares, and cause to be issued to such holder stock
certificates for a number of shares of the Company's common stock equal to the
number of Trust Shares represented by the trust certificates surrendered by such
holder under section 7.2(a)(i), free and clear of any Lien (except Permitted
Liens) and without any legend (except any Applicable Securities Law Legend).
7.3 Transfer of Trust Certificates. Each holder of trust
------------------------------
certificates agrees that, during the term of this agreement, the trust
certificates may be transferred only as expressly permitted by this agreement or
in the same manner and to the same extent as the Trust Shares may be transferred
in accordance with the Shareholders Agreements, and only if, in the
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case of a transfer of Trust Shares to a Permitted Transferee, such Permitted
Transferee executes and delivers to the Trustee a copy of this agreement, the
signature page of which shall specify that such Permitted Transferee is bound by
and takes such trust certificates subject to all the terms of this agreement
that were applicable to the transferor. In such event, the Permitted Transferee
shall hold the trust certificates subject to the terms of this agreement and the
Shareholders Agreements.
7.4 Trustee Information. The Trustee shall supply such information
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with respect to himself as may be required to be included in any registration
statement or other similar document to be filed with the federal or any state
government by the holders of trust certificates in connection with a transfer by
such holders of Trust Shares or trust certificates contemplated by this
agreement, and shall otherwise use all reasonable efforts to cooperate with such
holders in connection therewith.
8. Compensation and Expenses. Subject to section 9, the Trustee
-------------------------
shall not take or receive or have any claim for compensation or other
consideration for performance of his duties or acting as voting trustee under
this agreement. No holder of trust certificates shall be liable or obligated
for payment of any such expenses.
9. Indemnification of Trustee. The Company shall indemnify and hold
--------------------------
the Trustee harmless from and against any loss, liability, damage or expense
(including reasonable
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attorneys' fees) arising out of the Trustee's performance under this agreement
or otherwise arising only out of this agreement (it being understood, however,
that the Company's obligation under this section 9 shall not apply to any loss,
liability, damage or expense resulting from the Trustee's wilful breach of this
agreement or the Trustee's gross negligence). The Company shall from time to
time, upon presentation of invoices, reimburse the Trustee for any amount or
amounts the Trustee is reasonably required to pay to defend against any claim in
respect of which the Trustee advises the Company he is entitled to
indemnification under this section 9, as long as the Trustee shall have
furnished the Company an undertaking to repay such amount or amounts if it shall
ultimately be determined by a final and nonappealable judgment of a court of
competent jurisdiction that he is not so entitled to be indemnified. The rights
of the Trustee under this section 9 are in addition to any other rights the
Trustee may have in his capacity as a director, officer, employee or agent
of the Company or its affiliates under any by-law, agreement, vote of
shareholders or directors or otherwise.
10. Miscellaneous.
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10.1 Governing Law. This agreement shall be governed by and construed
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in accordance with the law of the state of New York applicable to agreements
made and to be performed wholly in New York.
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10.2 Notices. The Company shall give each of the Shareholders and
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others who are holders of Trust Certificates copies of any notice given
generally to shareholders of the Company. Any notice or other communication
under this agreement shall be in writing and shall be considered given when
delivered personally or mailed by registered mail, return receipt requested, at
the following addresses (or at such other address as a party may designate by
notice to the others) or at such addresses as holders of Trust Certificates may
designate by notice to the others:
if to the Company, to:
Schein Holdings, Inc.
c/o Schein Pharmaceutical, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
with a copy to:
Proskauer ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
if to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Marvin's 1993 Trust or Marvin's 1994
Trust, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
Peirez, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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If to ▇▇▇▇▇▇ ▇▇▇▇▇▇, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇. ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
One Citicorp Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to ▇▇▇ ▇▇▇▇▇▇'▇ Issue's Trust, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
One Citicorp Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to ▇▇▇▇▇▇ ▇▇▇▇▇▇, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇#▇, ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
with a copy to:
Schnader, Harrison, ▇▇▇▇▇ & ▇▇▇▇▇
Suite 700
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to ▇▇▇ ▇▇▇▇▇▇'▇ Issue's Trust, to:
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Schnader, Harrison, ▇▇▇▇▇ & ▇▇▇▇▇
Suite 700
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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If to the Trustee, to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
c/o Schein Holdings, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
If a successor voting trustee is designated pursuant to section 5, such
successor shall give notice of his or her address to the other parties in
accordance with this section, and any notice required or permitted to be given
to the voting trustee under this agreement shall be given at such address. Any
notice given to a party shall be deemed also to have been given to each of that
party's Permitted Transferees, and such party shall have the obligation to give
the same notice to each of its Permitted Transferees that at the time of such
notice owns Trust Shares. A copy of any notice or other communications given
under this agreement to the Company or the Trustee also shall be given to the
Shareholders.
10.3 Counterparts. This agreement may be executed in counterparts,
------------
each of which shall be considered an original, but all of which together shall
constitute the same instrument.
10.4 Equitable Relief. The parties acknowledge that the remedy at
----------------
law for breach of this agreement would be inadequate and that, in addition to
any other remedy a party may have for a breach of this agreement, that party
shall be entitled to an injunction restraining any such breach or threatened
breach, or a decree of specific performance, without posting any
20
bond or security. The remedy provided in this section 10.4 is in addition to,
and not in lieu of, any other rights or remedies a party may have.
10.5 Separability. If any provision of this agreement is invalid or
------------
unenforceable, the balance of this agreement shall remain in effect, and, if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
10.6 Entire Agreement. This agreement contains a complete statement
----------------
of all the arrangements among the parties with respect to its subject
matter, supersedes all existing agreements among them with respect to that
subject matter, may not be changed or terminated orally. Any amendment or
modification must be approved in writing by Miles and must be in writing and
signed by the Company, the Trustee (it being understood that the incumbent
Trustee at the time of the amendment or modification rather than any predecessor
Trustee must sign the amendment or modification) and the holders of Trust
Certificates representing a majority of the Trust Shares, provided that no such
amendment or modification may adversely effect the rights or obligations of
21
any holder of Trust Certificates without that holder's prior written consent.
SCHEIN HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Authorized Officer
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as voting
trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trust established by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ under trust agreement
dated December 31, 1993
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
Trust established by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ under trust agreement
dated September 9, 1994
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
22
Trust established by the
Trustees under Article Fourth
of the Will of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
for the benefit of ▇▇▇▇▇▇
▇▇▇▇▇▇ and her issue under
trust agreement dated
September 29, 1994
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as attorney in fact
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Trust established by ▇▇▇▇▇▇
▇▇▇▇▇▇ under trust agreement
dated September 28, 1994
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Trustee
23
No.________ EXHIBIT A
VOTING TRUST CERTIFICATE
SCHEIN HOLDINGS, INC.
THIS IS TO CERTIFY THAT
(1) on the termination of the Voting Trust Agreement hereinafter described as
provided in said Voting Trust Agreement, will be entitled to receive, upon
surrender of this certificate, a certificate or certificates for shares
of common stock of Schein Holdings, Inc., a New York corporation (the "Company")
and (2) on the termination of the Voting Trust Agreement with respect to any
shares as provided in section 6 thereof, will be entitled to receive, upon
surrender of this certificate to the extent of such shares, a certificate or
certificates for such number of shares of common stock of Holdings, and/or (in
the case of (1) and (2)) such other securities, if any, as may then be
deliverable in respect hereof in accordance with the terms of said Voting Trust
Agreement, including any such securities referred to in section 3 of said Voting
Trust Agreement, and, in the meantime, will be entitled to receive payment of
any dividends or distributions, other than such as shall be in the form of
voting securities of the Company, received by the Trustee in respect of a like
number of securities of the Company.
Until the termination of said Voting Trust Agreement and the delivery
of the stock certificates called for hereby, or, with respect to any shares as
to which said Voting Trust Agreement terminates in accordance with section 6
thereof, until such termination, the Trustee shall have full and exclusive power
and authority to vote in person or by proxy (or to refrain from voting) at all
meetings of the shareholders of the Company and to execute consents with respect
to all shares of capital stock of the Company held by the Trustee, for any
purpose, whether ordinary or extraordinary, and generally to exercise all the
powers of absolute owner thereof, subject in each case to the provisions of said
Voting Trust Agreement, it being expressly stipulated that no voting right
passes to the holder hereof by or under this certificate or by or under any
agreement, express or implied.
This certificate is issued pursuant and subject to the terms and
conditions of a certain Voting Trust Agreement dated September ___, 1994 among
the Company, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the trust established by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ under
trust agreement dated December 31, 1993, the trust established by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ under trust agreement dated September 9, 1994, ▇▇▇▇▇▇ ▇▇▇▇▇▇, the trust
established by the Trustees under Article Fourth of the Will of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
for the benefit of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and her issue under trust agreement dated
September ___, 1994, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and the trust established by ▇▇▇▇▇▇ ▇▇▇▇▇▇
under trust agreement dated September ___, 1994, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as voting
trustee. A copy of the Voting Trust Agreement is on file at the principal
office of the Company at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇. The
holder of this certificate, by the acceptance hereof, assents to all the terms
and provisions of said Voting Trust Agreement.
This certificate is transferable only on the books of the Trustee upon
surrender hereof at the office of the Trustee properly endorsed for transfer by
the registered holder hereof, either in person or by attorney duly authorized,
in accordance with the Voting Trust Agreement. The Trustee shall not be
obligated to recognize any person as the owner of this certificate other than
the person in whose name the same shall be registered on the books of the
Trustee.
IN WITNESS WHEREOF, the Trustee has executed this instrument this
day of , 1994.
__________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee
2
STOCK POWER
FOR VALUE RECEIVED, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ hereby sells, assigns and
transfers unto ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AS VOTING TRUSTEE UNDER THE VOTING TRUST
AGREEMENT DATED SEPTEMBER 30, 1994, ONE HUNDRED shares of Class B Common Stock,
par value $0.01, of Schein Holdings, Inc. (the "Corporation") represented by
Certificate No. 2 herewith, and do hereby irrevocably constitute and appoint
-----
attorney to transfer the said stock on the books of
---------------------------
the Corporation with full power of substitution in the premises.
Dated: September 30, 1994
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
In presence of:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
STOCK POWER
FOR VALUE RECEIVED, TRUSTEES UNDER THE TRUST ESTABLISHED BY ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ UNDER TRUST AGREEMENT DATED DECEMBER 31, 1993 hereby sell, assign and
transfer unto ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AS VOTING TRUSTEE UNDER THE VOTING TRUST
AGREEMENT DATED SEPTEMBER 30, 1994, SIXTY-FOUR THOUSAND SIX HUNDRED FORTY-TWO
AND 50/100 shares of Class B Common Stock, par value $0.01, of Schein Holdings,
Inc. (the "Corporation") represented by Certificate No. 4 herewith, and do
-----
hereby irrevocably constitute and appoint attorney
----------------------------
to transfer the said stock on the books of the Corporation with full power of
substitution in the premises.
Dated: September 30, 1994
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
In presence of:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
STOCK POWER
FOR VALUE RECEIVED, TRUSTEES UNDER THE TRUST ESTABLISHED BY ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ UNDER TRUST AGREEMENT DATED SEPTEMBER 9, 1994 hereby sell, assign and
transfer unto ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AS VOTING TRUSTEE UNDER THE VOTING TRUST AGREEMENT
DATED SEPTEMBER 30, 1994, TWENTY-FIVE THOUSAND TWO HUNDRED SEVENTY-SEVEN AND
50/100 shares of Class B Common Stock, par value $0.01, of Schein Holdings, Inc.
(the "Corporation") represented by Certificate No. 6 herewith, and do hereby
-----
irrevocably constitute and appoint attorney to
--------------------------
transfer the said stock on the books of the Corporation with full power of
substitution in the premises.
Dated: September 30, 1994
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
In presence of:
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
STOCK POWER
FOR VALUE RECEIVED, ▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby sells, assigns and transfers
unto ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AS VOTING TRUSTEE UNDER THE VOTING TRUST AGREEMENT DATED
SEPTEMBER 30, 1994, SIXTY-THREE THOUSAND TWO HUNDRED AND TWO shares of Class A
Common Stock, par value $0.01, of Schein Holdings, Inc. (the "Corporation")
represented by Certificate No. 3 herewith, and do hereby irrevocably constitute
-----
and appoint attorney to transfer the said stock on
----------------------------
the books of the Corporation with full power of substitution in the premises.
Dated: September 30, 1994
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
In presence of:
/s/
---------------------------
STOCK POWER
FOR VALUE RECEIVED, TRUSTEE UNDER THE TRUST ESTABLISHED BY TRUSTEE
UNDER ARTICLE FOURTH OF THE WILL OF ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ FOR THE BENEFIT OF ▇▇▇▇▇▇
▇▇▇▇▇▇ AND HER ISSUE UNDER TRUST AGREEMENT DATED September 29, 1994, hereby
sells, assigns and transfers unto ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AS VOTING TRUSTEE UNDER THE
VOTING TRUST AGREEMENT DATED SEPTEMBER 30, 1994, FOUR THOUSAND EIGHT HUNDRED AND
FORTY shares of Class A Common Stock, par value $0.01, of Schein Holdings, Inc.
(the "Corporation") represented by Certificate No. 7 herewith, and do hereby
irrevocably constitute and appoint attorney
---------------------------------
to transfer the said stock on the books of the Corporation with full power of
substitution in the premises.
Dated: September 30, 1994
/s/
---------------------------
In presence of
/s/
-----------------------
STOCK POWER
FOR VALUE RECEIVED, ▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby sells, assigns and transfers
unto ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AS VOTING TRUSTEE UNDER THE VOTING TRUST AGREEMENT DATED
SEPTEMBER 30, 1994, FIVE THOUSAND SEVEN HUNDRED AND FIVE Shares of Class A
Common Stock, par value $0.01, of Schein Holdings, Inc. (the "Corporation")
represented by Certificate No. 2 herewith, and do hereby irrevocably constitute
-----
and appoint attorney to transfer the said stock on the
-------------------------
books of the Corporation with full power of substitution in the premises.
Dated: September 28, 1994
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇,
In presence of:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public, State of New York
No. 41-162835O
Qualified in Oueens County
Certificate Filed in New York County
Commission Expires April 30, 1995
STOCK POWER
FOR VALUE RECEIVED, ▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby sells, assigns and transfers
unto ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AS VOTING TRUSTEE UNDER THE VOTING TRUST AGREEMENT DATED
SEPTEMBER 30, 1994, NINETEEN THOUSAND EIGHT HUNDRED AND THIRTY shares of Class A
Common Stock, par value $0.01, of Schein Holdings, Inc. (the "Corporation")
represented by Certificate No. 5 herewith, and do hereby irrevocably constitute
-----
and appoint attorney to transfer the said stock on the
----------------------
books of the Corporation with full power of substitution in the premises.
Dated: September 28, 1994
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
In presence of:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public, State of New York
No. 41-162835O
Qualified in Oueens County
Certificate Filed in New York County
Commission Expires April 30, 1995
STOCK POWER
FOR VALUE RECEIVED, TRUSTEE UNDER THE TRUST ESTABLISHED BY ▇▇▇▇▇▇
▇▇▇▇▇▇ UNDER TRUST AGREEMENT DATED SEPTEMBER 28, 1994 hereby sell, assign and
transfer unto ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, AS VOTING TRUSTEE UNDER THE VOTING TRUST AGREEMENT
DATED SEPTEMBER 30, 1994, NINE HUNDRED AND NINETY-THREE shares of Class A Common
Stock, par value $ 0.01, of Schein Holdings, Inc. (the "Corporation")
represented by Certificate No.6 herewith, and do hereby irrevocably constitute
----
and appoint attorney to transfer the said stock on the
---------------------
books of the Corporation with full power of substitution in the premises.
Dated: September 28, 1994
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
In presence of:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public, State of New York
No. 41-162835O
Qualified in Queens County
Certificate Filed in New York County
Commission Expires April 30, 1995