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EXHIBIT 10.1
STOCKHOLDER SUPPORT AGREEMENT
STOCKHOLDER SUPPORT AGREEMENT (this "Agreement"), dated July 8,
2005, by and among McKesson Corporation, a
Delaware corporation ("Parent"),
Spirit Acquisition Corporation, a Delaware
corporation and wholly-owned
subsidiary of Parent ("Purchaser"), and
certain stockholders of the Company (as
defined below) set forth on Schedule 1
hereto (each a "Stockholder" and,
collectively the "Stockholders").
WHEREAS, each Stockholder is, as of the date hereof, the record
and
beneficial owner of the number of shares of
common stock, par value $0.01 per
share (the "Common Stock"), of D&K
Healthcare Resources, Inc., a Delaware
corporation (the "Company"), set forth
opposite the name of such Stockholder on
Schedule 1 hereto;
WHEREAS, Parent, Purchaser and the Company have entered into an
Agreement and Plan of Merger, dated as of
the date hereof (the "Merger
Agreement"), which provides, among other
things, for Purchaser to conduct a
tender offer for all of the issued and
outstanding shares of the Common Stock
(the "Offer") and the merger of Purchaser
with and into the Company with the
Company continuing as the surviving
corporation (the "Merger") upon the terms
and subject to the conditions set forth in
the Merger Agreement (capitalized
terms used herein without definition shall
have the respective meanings
specified in the Merger Agreement); and
WHEREAS, as a condition to the willingness of Parent and
Purchaser
to enter into the Merger Agreement and as
an inducement and in consideration
therefor, the Stockholders have agreed to
enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual
covenants and agreements set forth herein
and in the Merger Agreement, and
intending to be legally bound hereby, the
parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Stockholders.
Each
Stockholder hereby represents and warrants
to Parent and Purchaser, severally
and not jointly, as follows:
(a) Such Stockholder (i) is the record and beneficial owner of
the shares of Common Stock and options to
acquire Common Stock (as may be
adjusted from time to time pursuant to
Section 6, the "Shares") set forth
opposite his name on Schedule 1 to this
Agreement and (ii) except as set forth
on Schedule 1, neither holds nor has any
beneficial ownership interest in any
option or warrant to acquire shares of
Common Stock or other right or security
convertible into or exercisable or
exchangeable for shares of Common Stock.
(b) Such Stockholder has the legal capacity to execute and
deliver this Agreement and to consummate
the transactions contemplated hereby.
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(c) This Agreement has been validly executed and delivered by
such Stockholder and constitutes the legal,
valid and binding obligation of such
Stockholder, enforceable against such
Stockholder in accordance with its terms,
except (i) as limited by applicable
bankruptcy, insolvency, reorganization,
moratorium and other laws of general
application affecting enforcement of
creditors' rights generally, and (ii) the
availability of the remedy of specific
performance or injunctive or other forms of
equitable relief may be subject to
equitable defenses and would be subject to
the discretion of the court before
which any proceeding therefor may be
brought.
(d) Neither the execution and delivery of this Agreement nor
the consummation by such Stockholder of the
transactions contemplated hereby
will result in a violation of, or a default
under, or conflict with, any
contract, trust, commitment, agreement,
understanding, arrangement or
restriction of any kind to which such
Stockholder is a party or by which such
Stockholder or such Stockholder's assets
are bound. The consummation by such
Stockholder of the transactions
contemplated hereby will not violate, or require
any consent, approval, or notice under, any
provision of any judgment, order,
decree, statute, law, rule or regulation
applicable to such Stockholder.
(e) The Shares and the certificates representing the Shares
owned by such Stockholder are now, and at
all times during the term hereof will
be, held by such Stockholder, or by a
nominee or custodian for the benefit of
such Stockholder, free and clear of all
liens, claims, security interests,
proxies, voting trusts or agreements,
options, rights, understandings or
arrangements or any other encumbrances or
restrictions whatsoever on title,
transfer, or exercise of any rights of a
stockholder in respect of such Shares
(collectively, "Encumbrances"), except for
any such Encumbrances arising
hereunder and restrictions applicable to
employees stock options and restricted
stock grants pursuant to the terms of such
options and grants.
SECTION 2. Representations and Warranties of Parent and
Purchaser.
Each of Parent and Purchaser hereby,
jointly and severally, represents and
warrants to the Stockholders as
follows:
(a) Each of Parent and Purchaser is a corporation duly
organized, validly existing and in good
standing under the laws of the State of
Delaware, and each of Parent and Purchaser
has all requisite corporate power and
authority to execute and deliver this
Agreement and to consummate the
transactions contemplated hereby, and has
taken all necessary corporate action
to authorize the execution, delivery and
performance of this Agreement.
(b) This Agreement has been duly authorized, executed and
delivered by each of Parent and Purchaser,
and constitutes the legal, valid and
binding obligation of each of Parent and
Purchaser, enforceable against each of
them in accordance with its terms, except
(i) as limited by applicable
bankruptcy, insolvency, reorganization,
moratorium and other laws of general
application affecting enforcement of
creditors' rights generally and (ii) the
availability of the remedy of specific
performance or injunctive or other forms
of equitable relief may be subject to
equitable
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defenses and would be subject to the
discretion of the court before which any
proceeding therefor may be brought.
SECTION 3. Tender of the Shares. Each Stockholder hereby agrees
that
(a) he shall tender his Shares (other than
unexercised options and other than
any shares of restricted stock that have
not vested as of the date of
determination under the terms of any
restricted stock grant agreement between
the Company and such Stockholder) into the
Offer as promptly as practicable, and
in any event no later than the fifth
business day, following the commencement of
the Offer pursuant to Section 2.01 of the
Merger Agreement, free and clear of
all Encumbrances (except for any such
Encumbrances arising hereunder) and (b) he
shall not withdraw any Shares so tendered
unless the Offer is terminated or has
expired without Purchaser purchasing all
shares of Common Stock validly tendered
in the Offer.
SECTION 4. Transfer of the Shares.
(a) Prior to the termination of this Agreement, except as
otherwise provided herein or as consented
to in writing by Parent, none of the
Stockholders shall, and, if applicable,
shall cause each of their subsidiaries
not to: (a) transfer, assign, sell,
gift-over, pledge or otherwise dispose
(whether by sale, liquidation, dissolution,
dividend or distribution) of, create
or suffer to exist any Encumbrances (except
for any such Encumbrances arising
hereunder) on, or consent to any of the
foregoing ("Transfer") with respect to,
any or all of the Shares or any right or
interest therein; (b) enter into any
contract, option or other agreement,
arrangement or understanding with respect
to any Transfer; (c) grant any proxy,
power-of-attorney or other authorization
or consent with respect to any of the
Shares; (d) deposit any of the Shares into
a voting trust, or enter into a voting
agreement or arrangement with respect to
any of the Shares or (e) directly or
indirectly take or cause the taking of any
other action that would in any way
restrict, limit or interfere with the
performance of such Stockholder's
obligations hereunder or the transactions
contemplated hereby.
(b) Each Stockholder agrees, if requested by Parent, to
surrender to the Company, or to the
transfer agent for the Company, certificates
evidencing the Shares, and shall cause the
Company or the transfer agent for the
Company to place the following legend on
any and all certificates evidencing the
Shares:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO THAT
CERTAIN
STOCKHOLDER SUPPORT AGREEMENT, DATED AS OF JULY 8, 2005, BY AND
AMONG MCKESSON CORPORATION, SPIRIT ACQUISITION CORPORATION AND
CERTAIN STOCKHOLDERS OF D&K HEALTHCARE RESOURCES, INC. ANY
TRANSFER
OF SUCH SHARES OF COMMON STOCK IN VIOLATION OF THE TERMS AND
PROVISIONS OF
SUCH
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AGREEMENT SHALL BE NULL AND VOID AND OF NO EFFECT WHATSOEVER.
(c) Upon receipt of payment in full for any of its Shares
tendered pursuant to the Offer, each
Stockholder agrees that any and all rights
incident to its ownership of Shares
(including any rights to recover amounts, if
any, that may be determined to be due to
any stockholder or former stockholders
of the Company), including but not limited
to rights arising out of such
Stockholder's ownership of such Shares
prior to the transfer of such Shares to
Purchaser pursuant to the Offer, shall be
transferred to Purchaser.
SECTION 5. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Each Stockholder hereby irrevocably grants to, and
appoints, Parent and any designee thereof,
such Stockholder's proxy and
attorney-in-fact (with full power of
substitution), for and in the name, place
and stead of such Stockholder, to vote the
Shares, or to grant a consent or
approval in respect of the Shares, in
connection with any meeting of the
stockholders of the Company or any action
by written consent in lieu of a
meeting of stockholders of the Company (i)
in favor of the Merger or any other
transaction pursuant to which Parent
proposes to acquire the Company, whether by
tender offer, merger, or otherwise, in
which stockholders of the Company would
receive consideration per share of Common
Stock equal to or greater than the
consideration to be received by such
stockholders in the Offer and the Merger,
and/or (ii) against any action or agreement
which would impede, interfere with
or prevent the Merger, including, but not
limited to, any other extraordinary
corporate transaction, includ
