Exhibit #3
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of
March 31, 1994, by and among Broad Street Investment Fund I,
L.P., Stone Street Fund 1986, Bridge Street Fund 1986, Goldman,
Sachs & Co., The Goldman Sachs Group, L.P., and The Kroger Co.,
(individually, a "Shareholder" and collectively, the
"Shareholders"), Revco D.S., Inc., a Delaware corporation
("RDS"), and HSX Acquisition Corp., a Delaware corporation and
wholly owned subsidiary of RDS ("Sub").
W I T N E S S E T H:
WHEREAS, the Shareholders own, of record and/or
beneficially, an aggregate of 10,249,998 shares of Common Stock,
par value $.01 per share (the "Common Stock"), of Hook-SupeRx,
Inc., a Delaware corporation (the "Company"), which shares
constitute approximately 49% of the currently issued and
outstanding shares of Common Stock (all such shares together with
any shares of Common Stock acquired by the Shareholders after the
date hereof and prior to the termination hereof, being referred
to herein as the "Shares"); and
WHEREAS, concurrently herewith, RDS, Sub and the
Company are entering into an Agreement and Plan of Merger, dated
as of the date hereof (the "Merger Agreement"), pursuant to
which, among other things, Sub will merge with and into the
Company (the "Merger"), and the holders of all of the issued and
outstanding shares of Common Stock will receive for $13.75 per
share (the "Merger Price") in cash; and
WHEREAS, the Shareholders desire to vote in favor of
the Merger; and
WHEREAS, RDS and Sub are entering into the Merger
Agreement in reliance on the Shareholders' covenants hereunder;
NOW, THEREFORE, in consideration of the foregoing
recitals and the mutual covenants and agreements herein contained
and other good and valuable consideration, the parties hereto
hereby agree as follows:
1. Agreement to Vote.
1..1 Voting. The Shareholders hereby agree, during
the time this Agreement is in effect, at any meeting of the
shareholders of the Company, however called, and in any action by
written consent of the shareholders of the Company, to (a) vote
all of their Shares in favor of the Merger; (b) vote such Shares
against any action or agreement that would result in a breach in
any material respect of any covenant, representation or warranty
or any other obligation of the Company under the Merger
Agreement; and (c) vote such Shares against any action or
agreement that would impede, interfere with or attempt to
discourage the Merger, including, but not limited to: (i) any
extraordinary corporate transaction (other than the Merger), such
as a merger, consolidation, business combination, reorganization,
recapitalization or liquidation involving the Company or any of
its subsidiaries; (ii) a sale or transfer of a material amount of
assets of the Company or any of its subsidiaries; (iii) any
change in the management or board of directors of the Company,
except as otherwise agreed to in writing by Sub; (iv) any
material change in the present capitalization or dividend policy
of the Company; or (v) any other material change in the Company's
corporate structure or business; provided, however, that nothing
herein shall be construed to obligate any Shareholder to act in
accordance with the terms hereof in such person's capacity as a
director or officer of the Company.
2. Representations and Warranties of the
Shareholders. Each Shareholder represents and warrants to Sub
and RDS as follows:
2..1 Ownership of Shares. The Shares indicated on
Exhibit I hereto next to the name of such Shareholder are owned
of record and/or beneficially by such Shareholder, constitute all
of the outstanding shares of Common Stock owned of record and/or
beneficially by such Shareholder. Such Shareholder does not have
any rights to acquire any additional shares of Common Stock.
2..2 Power; Binding Agreement. Such Shareholder has
full legal right, power and authority to enter into and perform
all of such Shareholder's obligations under this Agreement. The
execution and delivery of this Agreement by such Shareholder will
not violate any other agreement to which such Shareholder is a
party including, without limitation, any voting agreement,
shareholders' agreement or voting trust. This Agreement has been
duly executed and delivered by such Shareholder. To the
knowledge of such Shareholder, no consent or approval of or
filing with any governmental or other regulatory body is required
for the execution and performance in accordance with the terms of
this Agreement, except for filings required pursuant to the
Exchange Act and the rules and regulations promulgated
thereunder.
2..3 Shares. On the date hereof each Shareholder is,
and on the date of the Closing hereunder each Shareholder will
be, the lawful owner of the Shares indicated next to such
Shareholder's name on Exhibit I hereto, and there are no
restrictions of any kind upon the ability of such Shareholder to
vote such Shares on the date hereof and there will be no such
restrictions to vote such Shares during the term of this
Agreement.
3. Representations and Warranties of RDS and Sub.
Each of RDS and Sub jointly and severally represent and warrant
to the Shareholders as follows: (a) that each of RDS and Sub has
all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby;
(b) the execution, delivery and performance of this Agreement by
each of RDS and Sub have been duly authorized and approved by all
required corporate action on the part of each of Sub and RDS; (c)
this Agreement has been duly executed and delivered by each of
RDS and Sub and is a legal, valid and binding obligation of each
of RDS and Sub, enforceable against each in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws, now or hereafter in
effect, affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity).
4. Termination of Agent. The Agreement shall expire
upon the earliest to occur of (x) the Effective Time (as defined
in the Merger Agreement), and (y) September 30, 1994.
5. Certain Covenants of the Shareholders. Except in
accordance with the provisions of this Agreement, each
Shareholder, while this Agreement is in effect, shall not:
(a) sell, transfer, pledge, encumber, assign or
otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to the sale, transfer,
pledge, encumbrance, assignment or other disposition of, any
Shares;
(b) acquire any additional shares of Common Stock
without the prior consent of Sub;
(c) grant any proxies, deposit any Shares into a
voting trust or enter into a voting agreement with respect to any
Shares; or
(d) solicit or enter into any negotiations with, or
furnish or cause to be furnished any information concerning the
business or assets of the Company or its subsidiaries to, any
person or entity (other than RDS and Sub) in connection with the
acquisition of the business or substantially all the assets
(including by merger, sale of stock, consolidation, business
combination or otherwise) of the Company; provided, however, that
the foregoing shall not restrict any Shareholder or any officer,
director or partner of such Shareholder or its affiliates, from
otherwise exercising the fiduciary duties owed by such person to
the Company by virtue of such person's position as a director or
officer of the Company; provided further, however, that each
Shareholder will promptly communicate to RDS any solicitation or
inquiry received by such Shareholder; and, provided further that
the foregoing shall not prohibit Goldman, Sachs & Co. from taking
any action solely in its capacity as financial advisor to the
Company.
6. Expenses. Each party hereto will pay all of its
own expenses in connection with the transactions contemplated by
this Agreement, including, without limitation, the fees and
expenses of its counsel and other advisors.
7. Confidentiality. The Shareholders recognize that
successful consummation of the transactions contemplated by this
Agreement may be dependent upon confidentiality with respect to
the matters referred to herein. In this connection, pending
public disclosure thereof, each Shareholder shall not disclose or
discuss such matters with anyone (other than such Shareholder's
counsel and advisors, if any) not a party to this Agreement,
without the prior written consent of Sub, except for filings
required pursuant to the Exchange Act and the rules and
regulations thereunder or disclosures such Shareholder's counsel
advises are necessary in order to fulfill such Shareholder's
obligations imposed by law, in which event such Shareholder shall
give notice of such disclosure to Sub as promptly as practicable
so as to enable RDS to seek a protective order from a court of
competent jurisdiction with respect thereto.
8. Survival of Representations and Warranties. All
representations, warranties, covenants and agreements made by the
Shareholders, RDS or Sub in this Agreement shall survive each
Closing hereunder and any investigation at any time made by or on
behalf of any party.
9. Amendment; Assigns. This Agreement may not be
modified, amended, altered or supplemented except by an agreement
in writing executed by all of the parties hereto. This Agreement
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, but none of
the parties hereto may assign any of such party's rights, inter-
ests or obligations under this Agreement without the prior writ-
ten consent of the other parties hereto, except that Sub may
assign all of its rights and obligations under this Agreement to
any subsidiary of Sub or RDS without the consent of the Share-
holders, but no such transfer shall relieve Sub of its obliga-
tions hereunder if such subsidiary does not perform such
obligations.
10. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall
be given (and shall be deemed to have been duly given if so
given) if delivered in person, by cable, telegram, telex, or
telecopy, or sent by registered or certified mail (postage
prepaid, return receipt requested), to the respective parties as
follows:
If to RDS or Sub:
REVCO D.S., INC.
1925 Enterprise Parkway
Twinsburg, Ohio 44087
Attention: Jack A. Staph
With copies to:
BENESCH FRIEDLANDER COPLAN & ARONOFF
88 East Broad Street
Columbus, Ohio 43215-3506
Attention: Michael K.L. Wager, Esq.
WEIL, GOTSHAL & MANGES
767 Fifth Avenue
New York, New York 10153
Attention: Akiko Mikumo, Esq.
If to Broad Street Investment Fund I, L.P.,
Stone Street Fund 1986,
Bridge Street Fund 1986,
Goldman, Sachs & Co.
The Goldman Sachs Group, L.P.:
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Attention: Richard A. Friedman
With a copy to:
SULLIVAN & CROMWELL
125 Broad Street
New York, New York 10004
Attention: James C. Morphy
If to The Kroger Co.:
The Kroger Co.
1014 Vine Street
Cincinnati, Ohio 45202
Attention: Paul W. Heldman, Esq.
or to such other address as any party may designate in writing in
accordance herewith, except that notices of changes of address
shall only be effective upon receipt.
11. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but
all of which together shall constitute one and the same document.
12. GOVERNING LAW. THIS AGREEMENT, AND ALL MATTERS
RELATING HERETO, SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT
REGARD TO ANY PRINCIPLES OF CHOICE OF LAWS OR CONFLICTS OF LAW.
13. Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of
the terms or provisions of this Agreement in another
jurisdiction. If any provision of this Agreement is so broad as
to be unenforceable, such provision shall be interpreted to be
only so broad as is enforceable.
14. Further Assurances. Each party hereto shall
execute and deliver such additional documents as may be necessary
or desirable to consummate the transactions contemplated by this
Agreement.
15. Third Party Beneficiaries. Nothing in this
Agreement, expressed or implied, shall be construed to give any
person other than the parties hereto any legal or equitable
right, remedy or claim under or by reason of this Agreement or
any provision contained herein.
16. Entire Agreement. This Agreement, together with
the documents expressly referred to herein, constitutes the
entire agreement among the parties hereto with respect to the
subject matter contained herein and therein and supersedes all
prior agreements and understandings, express or implied, between
the parties with respect to such subject matter.
17. Injunctive Relief. The parties agree that in the
event of a breach of any provision of this Agreement, the
aggrieved party may be without an adequate remedy at law. The
parties therefore agree that in the event of a breach of any
provision of this Agreement, the aggrieved party may elect to
institute and prosecute proceedings in any court of competent
jurisdiction to enforce specific performance or to enjoin the
continuing breach of such provision, as well as to obtain damages
for breach of this Agreement. By seeking or obtaining any such
relief, the aggrieved party will not be precluded from seeking or
obtaining any other relief to which it may be entitled.
IN WITNESS WHEREOF, each of the parties hereto have
caused this Agreement to be duly executed and delivered as of the
day and year first above written.
REVCO D.S., INC.
By:_____________________________
Name: D. Dwayne Hoven
Title: President and Chief Executive
Officer
HSX ACQUISITION CORP.
By:_____________________________
Name:
Title: President
BROAD STREET INVESTMENT FUND I, L.P.
By: Goldman, Sachs & Co.
General Partner
By:_____________________________
Name:
Title:
STONE STREET FUND 1986
By: Stone Street Advisors Corp.
General Partner
By:_____________________________
Name:
Title:
BRIDGE STREET FUND 1986
By: Stone Street Advisors Corp.
General Partner
By:_____________________________
Name:
Title:
GOLDMAN, SACHS & CO.
By:_____________________________
Name:
Title:
THE GOLDMAN SACHS GROUP, L.P.
By: Goldman, Sachs & Co.
General Partner
By:_____________________________
Name:
Title:
THE KROGER CO.
By:_____________________________
Name:
Title:
EXHIBIT I
OWNERSHIP OF SHARES
Shares
Bridge Street Fund 1986 66,666
Stone Street Fund 1986 83,333
Goldman, Sachs & Co. 365,724
The Goldman Sachs Group, L.P. 500,000
Broad Street Investment Fund I, L.P. 4,109,275
Kroger Co. 5,125,000
April 1, 1994 - 1:18pm - NMA
CIN - 51355_4.CIN - 00000\578