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
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
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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 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.
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(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) Organization . Each of
Parent and Sub is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation.
(b) Corporate Authorization;
Validity of Agreemen
