EXHIBIT 3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 23, 1998, between ▇▇▇▇▇ ▇. ▇▇▇▇▇
(the "Shareholder") and Omnicare, Inc., a Delaware corporation ("Omni").
A. The Shareholder is the record and beneficial owner of 4,332,453
issued and outstanding shares (together with any shares acquired after the date
hereof, the "Shares") of common stock, $.0001 par value, of CompScript, Inc., a
Florida corporation ("CSI" or the "Company"), which Shares represent
approximately 31% of the currently issued and outstanding shares of CSI's common
stock.
B. In order to induce Omni to enter into the Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), by and between CSI
and Omni, Omni has requested that the Shareholder enter into this Agreement with
respect to the Shares.
C. Unless otherwise defined herein, all capitalized terms used in this
Agreement shall have the meanings given to them in the Merger Agreement.
For good and valuable consideration, the adequacy and receipt
of which are hereby acknowledged, and in order to induce Omni to enter into the
Merger Agreement, Omni and the Shareholder hereby agree as follows:
1. COVENANTS.
(a) At any meeting of shareholders of the Company called to vote upon
the Merger and the Merger Agreement or at any adjournment thereof or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger and the Merger Agreement is sought,
the Shareholder shall, including by initiating a written consent solicitation if
requested by Omni, vote (or cause to be voted) the Shareholder's Shares in favor
of the Merger, the adoption by the Company of the Merger Agreement and the
approval of the other transactions contemplated by the Merger Agreement.
(b) At any meeting of shareholders of the Company or at any adjournment
thereof or in any other circumstances upon which the Shareholder's vote, consent
or other approval is sought, the Shareholder shall vote (or cause to be voted)
such Shareholder's Shares against (i) any merger agreement or merger (other than
the Merger Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution, liquidation
or winding up of or by the Company or its Subsidiaries or any other Transaction
Proposal (as defined in the Merger Agreement) (collectively, "Alternative
Transactions") or (ii) any amendment of the Company's Amended and Restated
Articles of Incorporation or by-laws or other proposal or transaction involving
the Company or any of its subsidiaries, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent or
nullify, the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement (collectively, "Frustrating Transactions").
(c) The Shareholder shall not, (i) sell, transfer, pledge, assign or
otherwise dispose of, or enter into any contract, option or other arrangement
(including any profit sharing arrangement) or understanding with respect to the
sale, transfer, pledge, assignment or other disposition of, the Shares to any
person other than Omni or Omni's designee, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power-of-attorney
or otherwise, with respect to the Shares or (iii) take any other action that
would in any way restrict, limit or interfere with the performance of its
obligations hereunder or the transactions contemplated hereby.
2. GRANT OF IRREVOCABLE PROXY COUPLED WITH AN INTEREST; APPOINTMENT OF
PROXY.
(a) The Shareholder hereby irrevocably grants to and appoints any
individual who shall hereafter be designated by Omni, and each of them, such
Shareholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of such Shareholder, to vote such Shareholder's
Shares, or grant a consent or approval in respect of such Shares, at any meeting
of shareholders of the Company or at any adjournment thereof or in any other
circumstances upon which their vote, consent or other approval is sought, (i) in
favor of the Merger, the adoption by the Company of the Merger Agreement and the
approval of the other transactions contemplated by the Merger Agreement and (ii)
against any Alternative Transaction or Frustrating Transaction.
(b) The Shareholder represents that any proxies heretofore given in
respect of such Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) The Shareholder hereby affirms that the proxy set forth in this
Section 2 is coupled with an interest and is irrevocable until such time as this
Agreement terminates in accordance with its terms. The Shareholder hereby
further affirms that the irrevocable proxy is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of such Shareholder under this Agreement.
Such Shareholder hereby ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of
Section 607.0722 of the FBCA.
3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. THE SHAREHOLDER
HEREBY REPRESENTS AND WARRANTS TO OMNI AS FOLLOWS:
(a) Authorization. The Shareholder has the legal capacity to execute,
deliver and perform this Agreement. This Agreement constitutes a valid and
binding obligation of the Shareholder enforceable against him in accordance with
its terms. If the Shareholder is married and the Shares constitute community
property under applicable law, this Agreement has been duly authorized, executed
and delivered by, and constitutes the valid and binding agreement of, the
Shareholder's spouse enforceable against such spouse in accordance with its
terms.
2
(b) No Conflict. The execution, delivery and performance by the
Shareholder of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) result in any breach or violation of
or be in conflict with or constitute a default under term of any law or
agreement or arrangement to which the Shareholder is a party or by which the
Shareholder is bound, (ii) require any filing with or authorization by any
governmental entity or (iii) require any consent or other action by any person
under, constitute a default under, or give rise to any right of termination,
cancellation or acceleration or to a loss of any benefit to which the
Shareholder is entitled under any provision of any agreement or other instrument
binding on the Shareholder.
(c) Ownership of Shares. The Shareholder is the record and beneficial
owner of the Shares free and clear of any and all liens, pledges, restrictions,
charges or other adverse claims of any kind or nature. The Shareholder has the
sole voting power, sole power of disposition, sole power of conversion, sole
power to demand appraisal rights and sole power to agree to all the matters set
forth in this Agreement, in each case with respect to all of the Shares with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement. None of the Shares
are subject to any voting trust or other agreement or arrangement with respect
to the voting of such Shares. The Shareholder's Shares and the certificates
representing such Shares are now, and at all times during the term hereof will
be, held by the Shareholder, or by a nominee or custodian for the benefit of the
Shareholder. The Shareholder owns of record or beneficially no shares of CSI
Common Stock other than such Shareholder's Shares.
(d) Merger Agreement. The Shareholder understands and acknowledges that
Omni is entering into the Merger Agreement in reliance upon the Shareholder's
execution and delivery of this Agreement.
4. BOARD APPROVAL. The Board of Directors of the Company has, to the
extent required by applicable law, duly and validly authorized and approved by
all necessary corporate action, this Agreement, the Merger Agreement and the
transactions contemplated hereby and thereby, so that by the execution and
delivery hereof no restrictive provision of any "fair price," "moratorium,"
"control-share acquisition," "interested shareholders" or other similar
anti-takeover statute or regulation (including, without limitation, Sections
607.0901 and 607.0902 of the FBCA) or restrictive provision of any applicable
anti-takeover provision in the Articles of Incorporation or by-laws of the
Company is, or will be, applicable to the Company, Omni, the Shares, the Merger
or any other transaction contemplated by this Agreement.
5. MISCELLANEOUS.
(a) NOTICES. All notices shall be in writing and shall be given as
follows:
if to the Shareholder to:
▇▇▇▇▇ ▇. ▇▇▇▇▇
3
CompScript, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Atlas, ▇▇▇▇▇▇▇▇, Trop & Borkson, P.A.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
if to Omni to:
Omnicare, Inc.
2800 Chemed Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
or to such other address as may have been designated in a prior notice pursuant
to this Section. Notices shall be deemed effectively served and delivered upon
receipt.
(b) Binding Effect. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights or obligations
hereunder shall be assigned by the Shareholder without the prior written consent
of Omni. Except as otherwise specifically provided in this Agreement, nothing in
this Agreement is intended or will be construed to confer on any person other
than the parties hereto any rights or benefits hereunder.
(c) GOVERNING LAW. This Agreement will be governed by and construed
under Florida law, without regard to conflict of laws principles thereof.
4
(d) WAIVERS. Compliance with the provisions of this Agreement may be
waived only by a written instrument specifically referring to this Agreement and
signed by the party waiving compliance. No course of dealing, nor any failure or
delay in exercising any right, will be construed as a waiver, and no single or
partial exercise of a right will preclude any other or further exercise of that
or any other right.
(e) MODIFICATION. No supplement, modification or amendment of this
Agreement will be binding unless made in a written instrument that is signed by
all the parties hereto and that specifically refers to this Agreement. Entire
Agreement. This Agreement and the Merger Agreement are the exclusive statement
of the agreement among the parties hereto concerning the subject matter hereof.
Severability. If any one or more of the provisions of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions of this Agreement shall not be
affected thereby. To the extent permitted by applicable law, each party waives
any provision of law which renders any provision of this Agreement invalid,
illegal or unenforceable in any respect.
(f) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
(g) ENFORCEMENT. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in a court of the United States. This
being in addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties hereto waives any right to trial by
jury with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
(h) FURTHER ASSURANCES. Omni and the Shareholder will execute and
deliver, or cause to be executed and delivered, all further documents and
instruments and use their reasonable best efforts to take, or cause to be taken,
all actions necessary, proper or advisable under applicable Law to consummate
and make effective the transactions contemplated by this Agreement and to vest
the power to vote the Shareholder's Shares as contemplated by Sections 1 and 2 .
(i) TERMINATION. This Agreement, and all rights and obligations of the
parties hereunder, shall terminate upon the earliest to occur of (i)
consummation of the Merger, (ii) the termination of the Merger Agreement in
accordance with its terms, unless prior to such termination a person or entity
shall have made a Transaction Proposal and (iii) one year from the date hereof.
Sections 1(b) and 2(a)(ii) shall terminate on the earlier of (x) the date
computed in accordance with the preceding sentence and (y) six months after the
termination of the Merger
5
Agreement in accordance with its terms. Nothing in this Section 5(k) shall
relieve the Shareholder from liability for breach of this Agreement.
6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
OMNICARE, INC.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, the Shareholder
7