Exhibit 99.1
EXECUTION COPY
VOTING AGREEMENT
VOTING
AGREEMENT (this “ Agreement ”), dated as of
July 21, 2005, by and among EXPRESS SCRIPTS, INC., a Delaware
corporation (“ Parent ”), PONY ACQUISITION
CORPORATION, an Indiana corporation and a wholly owned subsidiary
of Parent (“ Sub ”), and WILLIAM E. BINDLEY,
individually (in such capacity, “ Mr. Bindley
”) and William E. Bindley Charitable Remainder Unitrust,
dated May 14, 1997, William E. Bindley Grantor Retained
Annuity Trust, dated February 13, 2003, William E. Bindley
Grantor Retained Annuity Trust, dated February 3, 2004,
William E. Bindley Grantor Retained Annuity Trust, dated
February 9, 2005 and William E. Bindley Family Grantor
Retained Annuity Trust, dated May 12, 2005 (collectively,
“ Trusts ”, and together with Mr. Bindley, the
“ Shareholders ”).
RECITALS
WHEREAS,
Parent, Sub and Priority Healthcare Corporation, an Indiana
corporation (the “ Company ”), propose to enter
into an Agreement and Plan of Merger dated as of the date hereof
(as the same may be amended or supplemented, the “ Merger
Agreement ”); capitalized terms used but not defined
herein shall have the meanings set forth in the Merger Agreement as
entered into on the date hereof) providing for the merger of Sub
with and into the Company (the “ Merger ”), upon
the terms and subject to the conditions set forth in the Merger
Agreement;
WHEREAS,
as of the date hereof, the Shareholders are the record and
beneficial owner of the number of shares of Company Common Stock
set forth on the signature page hereof beneath their names (the
“ Existing Shares ” and, together with any
shares of Company Common Stock acquired after the date hereof,
whether upon the exercise of warrants, options, conversion of
convertible securities or otherwise, the “ Shares
”);
WHEREAS,
as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Shareholders agree, and the
Shareholders have agreed, to enter into this Agreement;
and
WHEREAS,
the Shareholders and Parent desire to set forth their agreement
with respect to the voting of the Shares in connection with the
Merger Agreement and the Merger upon the terms and subject to the
conditions set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth
herein, the parties hereto agree as follows:
AGREEMENT
1.
Agreement to Vote . (a) The Shareholders hereby agree
that, from and after the date hereof and until this Agreement shall
have been terminated in accordance with Section 6, at any
meeting of the holders of Company Common Stock, however called, or
in
connection with any written
consent of the holders of Company Common Stock, the Shareholders
shall vote (or cause to be voted) their Shares (i) in favor of
approval of the Merger Agreement and the Merger and
(ii) except as otherwise agreed to in writing in advance by
Parent, against the following actions (other than the Merger
Agreement and the Merger): (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business
combination involving the Company or its subsidiaries; (B) a
sale, lease or transfer of a material amount of assets of the
Company or its subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of the Company or its subsidiaries;
(C)(1) any change in a majority of the Persons who constitute the
Board of Directors of the Company; (2) any material amendment
of the Company’s Articles of Incorporation or By-laws; or
(3) any other action involving the Company or its subsidiaries
which has the effect of impeding, interfering with, delaying,
postponing, or impairing (A) the ability of the Company to
consummate the Merger or (B) the transactions contemplated by
this Agreement and the Merger Agreement. The Shareholders shall not
enter into any agreement or understanding with any Person or entity
prior to the termination of this Agreement to vote in any manner
inconsistent herewith.
(b)
EACH SHAREHOLDER HEREBY GRANTS TO, AND APPOINTS, PARENT, AND ANY
DESIGNEE OF PARENT, EACH OF THEM INDIVIDUALLY, SUCH
SHAREHOLDER’S IRREVOCABLE (UNTIL THE TERMINATION DATE OF THIS
AGREEMENT) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF
SUBSTITUTION) TO VOTE THE SHARES AS INDICATED IN CLAUSE (a) OF
THIS SECTION 1. EACH SHAREHOLDER INTENDS THIS PROXY TO BE
IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED WITH AN
INTEREST AND WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH OTHER
INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS
PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY SUCH
SHAREHOLDER WITH RESPECT TO THE SHARES.
(c)
Except as set forth in clause (a) of this Section 1, the
Shareholders shall not be restricted from voting in favor of,
against or abstaining with respect to any matter presented to the
shareholders of the Company. In addition, nothing in this Agreement
shall give Parent the right to vote any Shares at any meeting of
the shareholders of the Company other than as provided in this
Section 1.
2.
Representations and Warranties of the Shareholders . Each
Shareholder, severally, hereby represents and warrants to Parent
and Sub as of the date hereof as follows:
(a)
Authorization; Validity of Agreement; Necessary Action .
Such Shareholder, in the case of Mr. Bindley, is an individual
and a resident of the State of Florida, and in the case of each of
the Trusts, is organized under the laws of the State of Indiana and
has full power, authority, capability and is competent to execute
and deliver this Agreement, to perform such Shareholder’s
obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by
such Shareholder of this Agreement and the consummation by it of
the transactions contemplated hereby have been duly and validly
authorized by such Shareholder and no other action or proceedings
on the part of such Shareholder are necessary to authorize the
execution and delivery by such Shareholder of this Agreement and
the consummation by such Shareholder of the
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transactions contemplated hereby. This Agreement
and the transactions contemplated hereby do not violate the trust
instrument of any of the Trusts. This Agreement has been duly
executed and delivered by such Shareholder, and, assuming this
Agreement constitutes a valid and binding obligation of Parent and
Sub, constitutes a valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance
with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar
Laws affecting creditors rights generally from time to time in
effect, and to general principles of equity, good faith and fair
dealing, regardless whether in a proceeding at equity or at
Law).
(b)
Consents and Approvals; No Violations . Except for filings,
permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the HSR Act, neither
the execution, delivery or performance of this Agreement by such
Shareholder nor the consummation by such Shareholder of the
transactions contemplated hereby nor compliance by such Shareholder
with any of the provisions hereof will (i) require any filing
with, or permit, authorization, consent or approval of, any
Governmental Entity (except where the failure to obtain such
permits, authorizations, consents or approvals or to make such
filings would not materially impair the ability of such Shareholder
to consummate the transactions contemplated hereby),
(ii) result in a violation or breach of, or constitute (with
or without due notice or lapse of time or both) a default (or give
rise to any right of termination, amendment, cancellation or
acceleration) under, any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, guarantee, other evidence of
indebtedness, lease, license, contract, agreement or other
instrument or obligation to which such Shareholder is a party or by
which such Shareholder or any of such Shareholder’s
properties or assets may be bound or (iii) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to
such Shareholder or any of such Shareholder’s properties or
assets, except in the case of clauses (ii) and (iii) for
violations, breaches or defaults, or rights of termination,
amendment, cancellation or acceleration, which would not materially
impair the ability of such Shareholder to consummate the
transactions contemplated hereby.
(c)
Shares . Such Shareholder’s Existing Shares are, and
such Shareholder’s Shares on the Closing Date will be, owned
beneficially and of record by such Shareholder. The
Shareholder’s Existing Shares constitute all of the shares of
Company Common Stock owned of record or beneficially by such
Shareholder. All of such Shareholder’s Existing Shares are
issued and outstanding and such Shareholder does not own, of record
or beneficially, any warrants, options or other rights to acquire
any shares of Company Common Stock. Such Shareholder has sole
voting power, sole power of disposition, sole power to issue
instructions with respect to the matters set forth in
Section 1 hereof, sole power of conversion, sole power to
exercise dissenter’s rights and sole power to agree to all of
the matters set forth in this Agreement, in each case with respect
to all of such Shareholder’s Existing Shares and will have
sole voting power, sole power of disposition, sole power to issue
instructions with respect to the matters set forth in
Section 1 hereof, sole power of conversion, sole power to
exercise dissenter’s rights and sole power to agree to all of
the matters set forth in this Agreement, with respect to all of the
Shareholder’s Shares on the Closing Date, with no
limitations, qualifications or restrictions on such rights, subject
to applicable federal securities laws and the terms of
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this Agreement.
Such Shareholder has good and valid title to such
Shareholder’s Existing Shares and at all times during the
term hereof and on the Closing Date will have good and valid title
to its Shares.
(d)
Litigation . There is no action, suit, investigation,
complaint or other proceeding pending against such Shareholder or,
to the knowledge of such Shareholder, any other Person or, to the
knowledge of such Shareholder, threatened against the Shareholder
or any other Person that restricts in any material respect or
prohibits (or, if successful, would restrict or prohibit) the
exercise by any party of such party’s rights under this
Agreement or the performance by any party of such party’s
obligations under this Agreement.
(e)
No Finder’s Fees . No broker, investment banker,
financial advisor or other Person is entitled to any
broker’s, finder’s, financial advisor’s or other
similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
such Shareholder.
3.
Representations and Warranties of Parent and Sub . Parent
and Sub hereby represent and warrant to the Shareholders as of the
date hereof as follows:
(a)
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