EXHIBIT 10.1
CONFORMED COPY
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of July 28, 2002,
is by and among Jon H. Outcalt (the "Stockholder"), NCS HealthCare, Inc., a
Delaware corporation (the "Company"), and Genesis Health Ventures, Inc., a
Pennsylvania corporation ("Parent").
WHEREAS, the Company, Parent and a wholly owned subsidiary of Parent
are parties to an Agreement and Plan of Merger, dated as of the date hereof (as
the same may be modified or amended from time to time, the "Merger Agreement");
WHEREAS, capitalized terms used herein and not otherwise defined
shall have the meanings assigned such terms in the Merger Agreement; and
WHEREAS, in order to induce Parent to enter into the Merger
Agreement, the Stockholder is prepared, subject to the terms and conditions of
this Agreement, to agree to and be bound by the obligations and restrictions
contained herein.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, each of the parties hereto agree as
follows:
Section 1. REPRESENTATIONS AND WARRANTIES. The Stockholder
hereby represents, warrants and covenants to each of the Company and Parent as
follows:
(a) TITLE. As of the date hereof, the Stockholder owns
beneficially and of record the number of shares of each class of capital stock
of the Company set forth on Exhibit A hereto (such shares, the "Shares"). The
term "beneficial owner" and all correlative expressions are used in this
Agreement as defined in Rules 13d-3 and 16a-1 under the Securities Exchange Act
of 1934, as amended.
(b) RIGHT TO VOTE. As of the date hereof and for so long as this
Agreement remains in effect (including the date of the Company Stockholders
Meeting, which, for purposes of this Agreement, includes any adjournment or
postponement thereof), except for this Agreement or as otherwise permitted by
this Agreement, the Stockholder has full legal power, authority and right to
vote all of the Shares then owned of record or beneficially by him, in favor of
the approval and authorization of the Merger, the Merger Agreement and the other
transactions contemplated thereby (collectively, the "Proposed Transaction")
without the consent or approval of, or any other action on the part of, any
other person or entity. Without limiting the generality of the foregoing, the
Stockholder has not entered into any voting agreement (other than this
Agreement) with any person or entity with respect to any of the Shares, granted
any person or entity any proxy (revocable or irrevocable) or power of attorney
with respect to any of the Shares, deposited any of the Shares in a voting trust
or entered into any arrangement or agreement with any person or entity limiting
or affecting his legal power, authority or right to vote the Shares on any
matter.
From and after the date hereof, except as otherwise permitted by
this Agreement or prohibited by order of a court of competent jurisdiction, the
Stockholder will not commit any act that could restrict or otherwise affect his
legal power, authority and right to vote all of the Shares then owned of record
or beneficially by him. Without limiting the generality of the foregoing, except
for this Agreement and as otherwise permitted by this Agreement, from and after
the date hereof, the Stockholder will not enter into any voting agreement with
any person or entity with respect to any of the Shares, grant any person or
entity any proxy (revocable or irrevocable) or power of attorney with respect to
any of the Shares, deposit any of the Shares in a voting trust or otherwise
enter into any agreement or arrangement with any person or entity limiting or
affecting the Stockholder's legal power, authority or right to vote the Shares
in favor of the approval of the Proposed Transaction.
(c) AUTHORITY. The Stockholder has full legal power, authority
and right to execute and deliver, and to perform his obligations under, this
Agreement. This Agreement has been duly and validly executed and delivered by
the Stockholder and constitutes a valid and binding agreement of the Stockholder
enforceable against him in accordance with its terms.
(d) CONFLICTING INSTRUMENTS. The execution and delivery of this
Agreement and the performance by the Stockholder of his agreements and
obligations hereunder will not result in any breach or violation of or be in
conflict with or constitute a default under any term of any agreement, judgment,
injunction, order, decree, law, regulation or arrangement to which the
Stockholder is a party or by which the Stockholder (or any of his assets) is
bound, except for any such breach, violation, conflict or default which,
individually or in the aggregate, would not impair or adversely affect the
Stockholder's ability to perform his obligations under this Agreement or render
inaccurate any of the representations made by him herein.
Section 2. COVENANTS. Until the termination of this Agreement in
accordance with Section 8, the Stockholder hereby agrees as follows:
(a) RESTRICTIONS ON TRANSFER. Prior to the Effective Time, the
Stockholder shall not Transfer (or agree to Transfer) any of his Shares owned
of record or beneficially by him.
As used in this agreement, the term "Transfer" means, with respect
to any security, the direct or indirect assignment, sale, transfer, tender,
pledge, hypothecation, or the grant, creation or sufferage of a lien or
encumbrance in or upon, or the gift, placement in trust, or the constructive
sale or other disposition of such security (including transfers by testamentary
or intestate succession or otherwise by operation of law) or any right, title or
interest therein (including but not limited to any right or power to vote to
which the holder thereof may be entitled, whether such right or power is granted
by proxy or otherwise), or the record or beneficial ownership thereof, the offer
to make such a sale, transfer, constructive sale or other disposition, and each
agreement, arrangement or understanding, whether or not in writing, to effect
any of the foregoing. The term "constructive sale" means a short sale with
respect to such security, entering into or
acquiring an offsetting derivative contract with respect to such security,
entering into or acquiring a futures or forward contract to deliver such
security or entering into any other hedging or other derivative transaction that
has the effect of materially changing the economic benefits and risks of
ownership.
(b) AGREEMENT TO VOTE. Subject to Section 8(b), the Stockholder
hereby irrevocably and unconditionally agrees to vote or to cause to be voted
all of the Shares then owned of record or beneficially by him at the Company
Stockholders Meeting and at any other annual or special meeting of shareholders
of the Company where any such proposal is submitted, and in connection with any
written consent of stockholders, (A) in favor of the Proposed Transaction and
(B) against (i) approval of any proposal made in opposition to or in competition
with the Proposed Transaction and the transactions contemplated by the Merger
Agreement, (ii) any merger, consolidation, sale of assets, business combination,
share exchange, reorganization or recapitalization of the Company or any of its
subsidiaries, with or involving any party other than as contemplated by the
Merger Agreement, (iii) any liquidation or winding up of the Company, (iv) any
extraordinary dividend by the Company, (v) any change in the capital structure
of the Company (other than pursuant to the Merger Agreement) and (vi) any other
action that may reasonably be expected to impede, interfere with, delay,
postpone or attempt to discourage the consummation of the transactions
contemplated by the Merger Agreement or result in a breach of any of the
covenants, representations, warranties or other obligations or agreements of the
Company under the Merger Agreement, which would materially and adversely affect
the Company or Parent or their respective abilities to consummate the
transactions contemplated by the Merger Agreement.
(c) GRANTING OF PROXY. Subject to Section 8(b), in furtherance of
the terms and provisions of this Agreement, the Stockholder hereby grants an
irrevocable proxy, coupled with an interest, to each of the President and the
Secretary of Parent and any other Parent-authorized representative or agent to
vote all of the Shares beneficially owned by the Stockholder in favor of the
Proposed Transaction and in accordance with the provisions of Section 2(b) and
this Section 2(c). The Stockholder hereby ratifies and approves of each and
every action taken by the President and the Secretary of Parent and any other
Parent-authorized representative or agent pursuant to the foregoing proxy.
Notwithstanding the foregoing, if requested by Parent, the Stockholder will
execute and deliver applicable proxy material in furtherance of the provisions
of Section 2(b) and this Section 2(c).
(d) NO SOLICITATION. Except as otherwise required by law, the
Stockholder, in his capacity as a shareholder, shall not directly or indirectly
(i) solicit, initiate or encourage (or authorize any Person to solicit, initiate
or encourage), including by way of furnishing information, any inquiry, proposal
or offer from any Person to acquire any of the business, property or capital
stock or debt securities of the Company or any direct or indirect subsidiary
thereof, whether by merger, purchase of assets, tender offer, consolidation,
leveraged buyout or other transaction; (ii) participate in any discussion or
negotiations regarding, or furnish to any other Person any information with
respect to, or assist or otherwise cooperate in any way with, or participate in,
facilitate or
encourage any effort or attempt by any other Person to do or seek any of the
foregoing; (iii) approve, endorse or recommend any of the foregoing; or (iv)
enter into any letter of intent or similar document or any contract, agreement
or commitment contemplating or otherwise relating to any of the foregoing.
Section 3. ACTION IN STOCKHOLDER CAPACITY ONLY. The Stockholder
makes no agreement or understanding herein as director or officer of the
Company. The Stockholder signs solely in his capacity as a record holder and
beneficial owner of Shares, and nothing herein shall limit or affect any actions
taken in his capacity as an officer or director of the Company.
Section 4. INVALID PROVISIONS. If any provision of this Agreement
shall be invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
it affecting the remaining provisions of this Agreement.
Section 5. EXECUTED IN COUNTERPARTS. This Agreement may be
executed in counterparts each of which shall be an original with the same effect
as if the signatures hereto and thereto were upon the same instrument.
Section 6. SPECIFIC PERFORMANCE. The parties hereto agree that
the failure for any reason of the Stockholder to perform any of his agreements
or obligations under this Agreement would cause irreparable harm or injury to
the Company and Parent with respect to which money damages would not be an
adequate remedy. Accordingly, the Stockholder agrees that, in seeking to enforce
this Agreement against the Stockholder, each of Parent and the Company shall be
entitled to specific performance and injunctive and other equitable relief in
addition to any other remedy available at law, equity or otherwise.
Section 7. GOVERNING LAW; SUBMISSION TO JURISDICTION. This
Agreement shall be governed by, and construed and enforced in accordance with,
the domestic laws of the State of Delaware without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware. Each of the parties hereto
irrevocably agrees that any legal action or proceeding with respect to this
Agreement or for recognition and enforcement of any judgment in respect hereof
brought by any other party hereto or its successors or assigns shall be brought
and determined in the state and federal courts of the State of Delaware, and
each of the parties hereto hereby irrevocably submits with regard to any such
action or proceeding for itself and in respect to its property, generally and
unconditionally, to the exclusive jurisdiction of the aforesaid courts. Each of
the parties hereto hereby irrevocably waives, and agrees not to assert, by way
of motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this agreement, any claim (a) that it is not personally subject
to the jurisdiction of the aforesaid courts for any reason, (b) that it or its
property is exempt or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through service of judgment,
execution of judgment, or otherwise), and (c) to the fullest extent permitted by
the applicable law, that (i) the suit, action or proceeding in such courts is
brought in an inconvenient forum, (ii) the venue of such suit, action or
proceeding is improper and (iii) this agreement, or the subject matter hereof,
may not be enforced in or by such courts.
Section 8. AMENDMENTS; TERMINATION; MODIFICATION.
(a) This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by all parties hereto (other than any Stockholder not affected by such
modification, amendment, alteration or supplement).
(b) Notwithstanding any other provision of this Agreement, the
Stockholder will not be required to vote in favor of the Merger (nor will the
irrevocable proxy apply) if, and only if, the Company and Parent amend the
Merger Agreement and either (i) such amendment is not approved by the Board of
Directors of the Company or a special committee thereof or (ii) such amendment
results in the Stockholder receiving different treatment or consideration for
his Shares than is received on a per share basis by the other stockholder of the
Company who has executed an agreement with Parent similar to this Agreement.
Except for provisions of this Agreement that by their terms survive the
termination hereof, the provisions of this Agreement shall terminate upon the
earliest to occur of (i) the Effective Time and (ii) the termination of the
Merger Agreement in accordance with its terms.
Section 9. ADDITIONAL SHARES. If, after the date hereof, the
Stockholder acquires beneficial or record ownership of any additional shares of
capital stock of the Company (any such shares, "Additional Shares"), including,
without limitation, upon exercise of any option, warrant or right to acquire
shares of capital stock of the Company or through any stock dividend or stock
split, the provisions of this Agreement applicable to the Shares shall
thereafter be applicable to such Additional Shares as if such Additional Shares
had been Shares as of the date hereof. The provisions of the immediately
preceding sentence shall be effective with respect to Additional Shares without
action by any person or entity immediately upon the acquisition by the
Stockholder of beneficial ownership of such Additional Shares.
Section 10. SUCCESSORS AND ASSIGNS. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective legal successors (including, in the case of the Stockholder
or any other individual, any executors, administrators, estates, legal
representatives and heirs of the Stockholder or such individual) and permitted
assigns; provided, however, that, except as otherwise provided in this
Agreement, no party may assign, delegate or otherwise transfer any of its rights
or obligations, under this Agreement, without (a) the consent of Parent, in the
case of the Stockholder, (b) the consent of the Stockholder and the Company, in
the case of Parent, and (c) the consent of Parent, in the case of the Company.
Without limiting the scope or effect of the restrictions on Transfer set forth
in Section 2(a), the Stockholder agrees that this Agreement and the obligations
hereunder shall attach to the Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
NCS HEALTHCARE, INC.
By: /s/ Kevin B. Shaw
----------------------------------
Name: Kevin B. Shaw
Title: Chief Executive Officer
GENESIS HEALTH VENTURES, INC.
By: /s/ George V. Hager, Jr.
----------------------------------
Name: George V. Hager, Jr.
Title: Executive Vice President and Chief
Financial Officer
JON H. OUTCALT
By: /s/ Jon H. Outcalt
----------------------------------
Name: Jon H. Outcalt
EXHIBIT A
SECURITIES BENEFICIALLY OWNED
Jon H. Outcalt 202,063 Shares of Company Class A Common Stock
121,166 Total Number of Vested Class A Common Stock
Options
108,334 Total Number of Non-Vested Class A Common
Stock Options
3,476,086 Shares of Company Class B Common Stock