Exhibit 2.6
EXECUTION COPY
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AGREEMENT AND PLAN OF MERGER
dated as of
October, 2001
by and among
GENESIS HEALTH VENTURES, INC.,
MULTICARE ACQUISITION CORP.,
AND
GENESIS ELDERCARE CORP.
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made as of October
2, 2001, by and among Genesis Health Ventures, Inc., a Pennsylvania corporation
("Genesis" or "Parent"), Multicare Acquisition Corp., a Delaware corporation and
wholly owned subsidiary of Genesis ("Merger Sub"), and Genesis ElderCare Corp.,
a Delaware corporation (the "Company").
RECITALS:
WHEREAS, on June 22, 2000, each of Genesis and the Company commenced
chapter 11 cases under chapter 11 of title 11 of the United States Code, as
amended from time to time (the "Bankruptcy Code");
WHEREAS, Genesis, the Company, and certain of its affiliates have
proposed a Joint Plan of Reorganization which provides for the merger of the
Company with and into Merger Sub (the "Merger") and the Company will be the
surviving corporation in the Merger in accordance with the Delaware General
Corporation Law (the "DGCL") and the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and covenants herein contained, the Parties agree as
follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to conditions of
this Agreement at the Closing and in accordance with the Delaware General
Corporation Law ("DGCL"), at the Effective Time (as defined in Section 1.2),
Merger Sub shall be merged with and into the Company and the separate corporate
existence of Merger Sub shall thereafter cease. After the Merger, the Company
shall continue as the Surviving Corporation (the "Surviving Corporation"). The
Merger is being effected pursuant to Section 303 of the DGCL.
Section 1.2 Effective Time of the Merger. Upon the terms and subject to
the conditions hereof, an appropriate certificate of merger (the "Certificate of
Merger") shall be duly prepared and executed by each of Merger Sub and the
Company and thereafter delivered to the Secretary of State of the State of
Delaware for filing, as provided in the DGCL, on the Closing Date (as defined in
Section 1.3). Thc Merger shall become effective upon the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware or,
subject to the DGCL, at such later time as is agreed upon by the parties and
specified in the Certificate of Merger. The term "Effective Time" shall mean the
date and time at which the Merger becomes effective.
Section 1.3 Closing. Unless another date or place is agreed to in
writing by the parties hereto, the closing of the transactions contemplated
hereby (the "Closing") shall take place at 10:00 a.m. local time no later than
the second business day following the satisfaction or waiver of the conditions
set forth in Article VII and concurrently with the effective date under the Plan
of Reorganization, or such other date to which the parties hereto agree. The
location of the Closing shall be the offices of Weil, Gotshal & Manges, 767
Fifth Avenue, New York, New York 10153. The time and date of the Closing is
herein called the "Closing Date."
Section 1.4 Effects of the Merger. The Merger shall have the effects
set forth in the DGCL and the Plan of Reorganization.
Section 1.5 Certificate of Incorporation and By-Laws.
(a) Pursuant to the Merger, the certificate of incorporation of the
Company shall be amended in its entirety to read as set forth in Exhibit A
hereto, and shall be the certificate of incorporation of the Surviving
Corporation, until amended in accordance with applicable law, except that the
name of the Surviving Corporation shall be "Genesis ElderCare Corp."
(b) The by-laws of the Company shall be amended in their entirety to
read as set forth in Exhibit B hereto and shall be the by-laws of the Surviving
Corporation, until amended in accordance with applicable law, except that the
name of the Surviving Corporation shall be "Genesis ElderCare Corp."
Section 1.6 Directors. The directors of Merger Sub immediately prior to
the Effective Time shall be the initial directors of the Surviving Corporation,
each to hold office from the Effective Time in accordance with the certificate
of incorporation and by-laws of the Surviving Corporation and until his or her
successor is duly elected and qualified.
Section 1.7 Officers. The officers of Merger Sub immediately prior to
the Effective Time shall be the initial officers of the Surviving Corporation,
each to hold office from the Effective Time in accordance with the certificate
of incorporation and by-laws of the Surviving Corporation and until his or her
successor is duly appointed and qualified.
ARTICLE II
CONVERSION OF SECURITIES; DISSENTING SHARES
Section 2.1 Effect on Capital Stock of the Company and the Merger Sub.
As of the Effective Time, by virtue of the Merger and the Plan of Reorganization
and without any action on the part of any holder of any capital stock of the
Company or Merger Sub:
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(a) Conversion of Capital Stock of the Company. The common stock of the
Company issued in accordance with the Plan of Reorganization shall be converted
as follows: (i) holders of claims in Class M2 under the Plan of Reorganization
shall receive (A) $25,000,000 in cash, (B) $147,682,000 in New Senior Notes
(as defined in the Plan of Reorganization), (C) 116,000 shares of series A
convertible preferred stock, $0.02 par value per share of Genesis ("Parent
Preferred Stock"), having a liquidation amount of $11,600,000, and (D) 7,798,917
shares of the common stock, $0.02 par value per share, of Genesis ("Parent
Common Stock") and (ii) holders of claims in Classes M4 and M5 under the Plan of
Reorganization shall receive 1,026,857 shares of Parent Common Stock,
representing 0.23% of the Parent Common Stock and New Warrants to purchase
1,723,830 shares of Parent Preferred Stock.
(b) Cancellation of Treasury Stock, Subsidiary-Owned Stock and
Parent-Owned Stock. Pursuant to the terms of the Plan of Reorganization, all
shares of the common stock of the Company authorized or issued prior to the
effective date of the Plan of Reorganization, including any shares that are
owned by the Company as treasury stock, and any shares of common stock of the
Company owned by (or which would otherwise be owned by) Parent, Merger Sub or
any other Subsidiary of Parent shall be cancelled and shall cease to exist and
no other consideration shall be delivered in exchange therefor and each holder
of a certificate formerly representing any such shares shall cease to have any
rights with respect thereto. As used in this Agreement, "Subsidiary" means, with
respect to any party, any corporation or other organization, whether
incorporated or unincorporated, of which such party, either directly or
indirectly, or any other Subsidiary of such party, either directly or
indirectly, beneficially owns at least a majority of the voting or economic
interests.
(c) Capital Stock of Merger Sub. Each issued and outstanding share of
common stock, $0.01 par value per share, of Merger Sub ("Merger Sub Common
Stock") of which, as of the date hereof, 100 shares are issued and outstanding,
each entitling the holder thereof to vote on the approval of this Agreement and
the transactions contemplated hereby), shall be converted into one fully paid
and nonassessable share of common stock, $0.01 par value, of the Surviving
Corporation.
Section 2.2 Distribution of Merger Consideration. The consideration
identified in Section 2.1 hereof shall be paid in accordance with the terms and
conditions of the Plan of Reorganization.
Section 2.3 Closing of Transfer Books; No Further Ownership Rights in
Company Capital Stock. At the Effective Time, the stock transfer books of the
Company shall be closed and thereafter there shall be no further registration of
any transfer of any shares of the common stock of the outstanding immediately
prior to the effective date of the Plan or Reorganization on the records of the
Company. Pursuant to section 303 of the DGCL no stockholder of the Company shall
have any statutory right of appraisal of such stockholder's shares.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Merger Sub as
follows:
Section 3.1 Organization; Qualification; Subsidiaries.
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the state of Delaware and has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. The Company is duly qualified or
licensed to do business and in good standing in each jurisdiction in which the
property owned, leased or operated by it or the nature of the business conducted
by it makes such qualification or licensing necessary, except where the failure
to be so duly qualified or licensed and in good standing would not, individually
or in the aggregate, have a Material Adverse Effect on the Company. As used in
this Agreement, "Material Adverse Effect" shall mean, with respect to any
entity, any change, effect, event, occurrence or state of facts (i) that is, or
reasonably would be expected to be, materially adverse to the business, assets,
financial condition, results of operations or prospects of the entity and its
subsidiaries taken as a whole or (ii) that would prevent, or reasonably be
expected to prevent, the entity from performing its obligations under this
Agreement or prevent the consummation of the transactions contemplated hereby.
(b) The Company is not in violation of any provision of its certificate
of incorporation or by-laws.
Section 3.2 Authority. The Company has the requisite corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the Merger
and of the other transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of the Company and no other corporate
proceedings on the part of the Company are necessary to authorize this Agreement
or to consummate the transactions so contemplated. This Agreement has been duly
executed and delivered by the Company and, assuming this Agreement constitutes a
valid and binding obligation of Parent and Merger Sub, as the case may be,
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms.
Section 3.3 Consents and Approvals; No Violations. Except for filings,
notices, consents and approvals as may be required under the DGCL and an order
issued by United States Bankruptcy Court for the District of Delaware in the
bankruptcy cases of Genesis and the Company, neither the execution, delivery or
performance of this Agreement by the Company nor the consummation by the Company
of the transactions contemplated hereby nor compliance by the Company with any
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of the provisions hereof will (i) conflict with or result in any breach of any
provisions of its or any of its Subsidiaries' certificates of incorporation or
by-laws, (ii) require any filing with, or notice to, or permit, authorization,
consent or approval of, any court, arbitral tribunal, administrative agency or
commission or other governmental or other regulatory authority or agency (a
"Governmental Entity") or any third party, (iii) 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 of any right or obligation of the Company or to a loss of any
benefit to which the Company is entitled) under, or result in the creation of
any Encumbrance (as defined below) on any property or asset of the Company or
any of its Subsidiaries pursuant to, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which the Company or any of its Subsidiaries
is a party or by which it or they or any of its or their properties or assets
may be bound or (iv) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to the Company or any of its Subsidiaries or by which
any property or asset of the Company or any of its Subsidiaries is bound or
affected. For purposes of this Agreement, "Encumbrance' means any mortgage,
pledge, lien, encumbrance, charge or adverse claim affecting title or resulting
in an encumbrance against real or personal property, or a security interest of
any kind (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell and any
filing of or agreement to give any financing statement under the Uniform
Commercial Code (or any equivalent statutes) of any jurisdiction).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to the Company as follows:
Section 4.1 Organization.
(a) Each of Parent and Merger Sub is a corporation duly organized,
validly existing and in good standing under the laws of the state of
incorporation, respectively, and has all requisite corporate power and authority
to own, lease and operate its properties and to carry on its business as now
being conducted. Parent is duly qualified or licensed to do business and in good
standing in each jurisdiction in which the property is owned, leased or operated
by it or the nature of the business conducted by it makes such qualification or
licensing necessary, except where the nature to be so duly qualified or licensed
and in good standing would not have a Material Adverse Effect on the Parent.
Parent is not in violation of any provision of its certificate of incorporation
or by-laws.
Section 4.2 Authority. Parent and Merger Sub each have the requisite
corporate power and authority to execute and deliver this Agreement and to
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consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement by each of Parent and Merger Sub and the
consummation by Merger Sub of the Merger and by Parent and Merger Sub of the
other transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Parent and Merger Sub and no other
corporate proceedings on the part of Parent or Merger Sub are necessary to
authorize this Agreement or to consummate the transactions so contemplated. This
Agreement has been duly executed and delivered by each of Parent and Merger Sub
and, assuming this Agreement constitutes a valid and binding obligation of the
Company, constitutes a valid and binding obligation of each of Parent and Merger
Sub, enforceable against them in accordance with its terms.
Section 4.3 Capitalization. As of the date hereof (after giving effect
to the Plan of Reorganization), the authorized capital stock of Parent will
consist of (a) 200,000,000 shares of Parent Common Stock, par value $0.01 per
share of which 41,000,000 shares will be outstanding, and (b) 10,000,000 shares
of Parent Preferred Stock, having a liquidation value of $100 per share of which
426,000 shares will be outstanding.
Section 4.4 Consents and Approvals; No Violations. Except for filings,
notices, consents and approvals as may be required under the DGCL and the
Bankruptcy Court Order, neither the execution, delivery or performance of this
Agreement by Parent and Merger Sub nor the consummation by Parent and Merger Sub
of the transactions contemplated hereby nor compliance by Parent and Merger Sub
with any of the provisions hereof will (i) conflict with or result in any breach
of any provision of their respective certificates of incorporation or by-laws,
(ii) require any filing with, or permit, authorization, consent or approval of,
any Governmental Entity, or (iii) 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
of any right or obligation of the Parent or Merger Sub or to a loss of any
benefit to which the Parent or Merger Sub is entitled) under, or result in the
creation of any Encumbrance on any property or asset of the Parent or any of its
Subsidiaries pursuant to, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which the Parent or any of its Subsidiaries is a
party or by which it or they or any of its or their properties or assets may be
bound or (iv) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Parent or by which any property or assets of Parent is
bound or affected.
Section 4.5 Operations of Merger Sub. Merger Sub (i) was formed solely
for the purpose of engaging in the transactions contemplated hereby, (ii) has
engaged in no other business activities and (iii) has conducted its operations
only as contemplated hereby.
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ARTICLE V
COVENANTS AND AGREEMENTS
Section 5.1 Conduct of Business of the Company. Except as expressly
contemplated by this Agreement or with the prior written consent of Parent,
during the period from the date of this Agreement to the Effective Time, the
Company will conduct its operations only in the ordinary and usual course of
business consistent with past practice and will use all reasonable best efforts
to preserve intact its present business organization, keep available the
services of its present officers and employees and preserve its relationships
with licensors, licensees, customers, suppliers, employees and any others having
business dealings with it.
Section 5.2 Access to Information. The Company shall give Parent and
its authorized representatives reasonable access, during normal business hours,
to all books, records and information reasonably requested by Parent and to the
Company's properties and facilities, employees, customers and suppliers.
Notwithstanding the foregoing, Parent will not contact in connection with the
transactions contemplated by this Agreement any customers, suppliers or
employees of the Company or any governmental regulatory agencies governing the
Company's business activities without obtaining the prior consent of the
Company, which consent will not be unreasonably withheld.
Section 5.3 Reasonable Best Efforts.
(a) Upon the terms and subject to the conditions of this Agreement,
each of the parties hereto agrees to use its reasonable best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement as
promptly as practicable including, but not limited to, the preparation and
filing of all forms, registrations and notices required to be filed to
consummate the transactions contemplated by this Agreement and the taking of
such actions as are necessary to obtain any requisite approvals, consents,
orders, exemptions or waivers by any third party or Governmental Entity and the
satisfaction of all conditions to Closing. Each party shall promptly consult
with the other with respect to, provide any necessary information not subject to
legal privilege with respect to and provide the other (or its counsel) copies
of, all filings made by such party with any Governmental Entity or any other
information supplied by such party to a Governmental Entity in connection with
this Agreement and the transactions contemplated by this Agreement.
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(b) Each party hereto shall promptly inform the other of any
communications from any Government Entity regarding any of the transactions
contemplated by this Agreement. If any party or affiliate thereof receives a
request for additional information or documentary material from any such
Government Entity with respect to the transactions contemplated by this
Agreement, then such party will endeavor in good faith to make, or cause to be
made, as soon as reasonably practicable and after consultation with the other
party, an appropriate response in compliance with such request.
(c) Notwithstanding the forgoing, nothing in this Agreement shall be
deemed to require Parent to enter into any agreement with any Governmental
Entity or to consent to any order, decree or judgment requiring Parent to hold,
separate or divest, or to restrict the dominion or control of Parent or any of
its affiliates over, any of the assets, properties or businesses of Parent, its
affiliates or the Company.
Section 5.4 No Solicitation. The Company agrees not to, and agrees to
use its best efforts to cause its officers, directors and advisors not to,
directly or indirectly (A) solicit from any third person or entity any inquiries
or proposals or enter into or continue any discussions, negotiations or
agreements relating to the sale or other disposition of any or all of Company
Common Stock or any or all of its material assets to any person or entity other
than Parent (or an affiliate of Parent), or (B) provide any assistance or any
information to any person or entity other than Parent in connection with any
such inquiry, proposal or transaction, and, to the extent such information has
already been provided in written form, the Company agrees to have all such
information either promptly returned to the Company or destroyed.
Section 5.5 Fees and Expenses. Regardless of whether the transactions
provided for in this Agreement are consummated each party hereto shall pay its
own fees and expenses incident to this Agreement and the transactions
contemplated herein.
Section 5.6 Public Announcements. Prior to the Effective Time, none of
the parties hereto will issue or cause the publication of any press release or
otherwise make any public statement with respect to the transactions
contemplated hereby without the consent of the other parties hereto, which
consent shall not be unreasonably withheld; provided, that, any party hereto may
make a public announcement to the extent required by law or regulation.
ARTICLE VI
CONDITIONS
Section 6.1 Conditions to Each Party's Obligation To Effect the Merger.
The respective obligations of the parties to effect the Merger shall be subject
to the satisfaction, on or prior to the Closing Date, of the following
conditions:
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(a) Bankruptcy Court Order. There shall have been entered in the
Bankruptcy Court for Delaware an order confirming the Plan of Reorganization;
and
(b) No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Merger shall be in effect (each party agreeing to use all
reasonable efforts to have any such order reversed or injunction lifted).
Section 6.2 Conditions to Obligation of Parent and Merger Sub. The
obligation of Parent and Merger Sub to effect the Merger are subject to the
satisfaction, on or prior to the Closing Date, of the following conditions
unless waived by Parent and Merger Sub:
(a) Each of the representations and warranties of the Company in this
Agreement shall be true and correct in all respects as of the date hereof and at
and as of the Closing with the same effect as though such representations and
warranties had been made at and as of such time, other than representations and
warranties that speak as of a specific date or time (which need only be true and
correct in all respects as of such date or time);
(b) The Company shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or prior to
the Closing;
(c) All authorizations, consents, orders and approvals of, and
declarations and filings with any Governmental Entity, shall have occurred, been
filed or been obtained and any such approvals shall have become Final Orders. A
"Final Order" means action by the relevant regulatory authority which has not
been reversed, stayed, enjoined, set aside, annulled or suspended, with respect
to which any waiting period prescribed by law before the transaction
contemplated hereby may be consummated has expired, and as to which all
conditions to the consummation of such transactions prescribed by law,
regulation or order have been satisfied;
(d) All third party consents necessary to effect the transactions
contemplated by this Agreement, shall have occurred, been filed or been
obtained; and
(e) Parent shall have received such other documents or instruments from
the Company as Parent reasonably requests to effect the transactions
contemplated hereby.
Section 6.3 Conditions to Obligation of the Company. The obligation of
the Company to effect the Merger is subject to the satisfaction of the following
conditions, on or prior to the Closing Date, unless waived by the Company:
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(a) Each of the representations and warranties of Parent and Merger Sub
in this Agreement shall be true and correct in all respects as of the date
hereof and at and as of the Closing with the same effect as though such
representations and warranties had been made at and as of such time, other than
representations and warranties that speak as of a specific date or time (which
need only be true and correct in all respects as of such date or time);
(b) Parent and Merger Sub shall have performed in all material respects
all obligations required to be performed by them under this Agreement at or
prior to the Closing;
(c) All authoritizations, consents, orders and approvals of, and
declarations and filings with any Governmental Authority, shall here occurred,
been filed or been obtained and any such approvals shall have become Final
Orders;
(d) All third party consents necessary to effect the transactions
contemplated by this Agreement, shall here occurred, been filed or been
obtained; and
(e) The Company shall have received such other documents or instruments
from Parent and Merger Sub as the Company reasonably requests to effect the
transactions contemplated hereby.
ARTICLE VII
TERMINATION AND AMENDMENT
Section 7.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after approval of the matters
presented in connection with the Merger by the stockholders of the Company or
Merger Sub:
(a) By mutual consent of Parent and the Company; or
(b) By either Parent or the Company if the Merger shall not have been
consummated before 180 days from the date of the Agreement despite the good
faith effort of such party to effect such consummation (unless the failure to so
consummate the Merger by such date shall be due to the action or failure to act
of the party seeking to terminate this Agreement, which action or failure to act
constitutes a breach of this Agreement).
Section 7.2 Effect of Termination. In the event of a termination of
this Agreement by either the Company or Parent in accordance with Section 7.1,
this Agreement shall forthwith become void and there shall be no liability or
obligation on the part of Parent, Merger Sub or the Company or their respective
officers or directors.
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ARTICLE VIII
MISCELLANEOUS
Section 8.1 Amendment. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 8.2 Extension; Waiver. At any time prior to the Effective Time,
the parties hereto may to the extent legally allowed, (i) extend the time for
the performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto or (iii) waive
compliance with any of the agreements or conditions contained here. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in a written instrument signed on behalf of such party.
Section 8.3 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
if to Parent or Merger Sub, to
Genesis Health Ventures, Inc.
101 East State Street
Kennett Square, Pennsylvania 19348
Attn: James J. Wankmiller, Esq.
Corporate Secretary and General Counsel
Telephone: (610) 444-6350
Telecopier: (610) 444-3365
with a copy to
Weil, Gotshal & Manges, LLP
767 Fifth Avenue
New York, NY 10153
Telephone: (212) 310-8000
(a) Attention: Michael F. Walsh, Esq.
Telecopy: 212-310-8007
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if to the Company, to
Genesis Eldercare Corp.
101 East State Street
Kennett Square, Pennsylvania 19348
Attn: James J. Wankmiller, Esq.
Corporate Secretary and General Counsel
Telephone: (610) 444-6350
Telecopier: (610) 444-3365
Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this
Agreement unless otherwise indicated. The headings contained
in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement they shall be deemed to
be followed by the words "without limitation." The phrases
"the date of this Agreement," "the date hereof" and terms of
similar import, unless the context otherwise requires, shall
be deemed to refer to the date set forth on the second line of
this Agreement. The term "to the Company's knowledge" shall be
deemed to include the knowledge of all officers, directors and
employees of the Company.
Section 8.4 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties, it being understood that all parties need not sign the same
counterpart.
Section 8.5 Entire Agreement; No Third Party Beneficiaries. This
Agreement (including the documents and the instruments referred to herein) (i)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and thereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
Section 8.6 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware applicable to
contracts made, executed, delivered and performed wholly within the State of
Delaware, without regard to any applicable conflicts of law.
Section 8.7 Specific Performance. The parties hereto agree that if any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, irreparable damage would occur, no
adequate remedy at law would exist and damages would be difficult to determine,
and that the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity.
Section 8.8 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that (i) Parent may assign, in its sole
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discretion, any or all rights, interests and obligations of Merger Sub hereunder
to any direct or indirect wholly owned Subsidiary of Parent, (ii) Parent may
assign, in its sole discretion, any or all of its or Merger Sub's rights and
interests hereunder as collateral in connection with any financing arrangements
entered into in connection with the transactions contemplated by this Agreement
and (iii) after the Closing Date, Parent and the Company may assign any or all
of their rights and interests under this Agreement to any other person or
entity. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns.
Section 8.9 No Strict Construction. Each of the parties hereto
acknowledge that this Agreement has been prepared jointly by the parties hereto,
and shall not be strictly construed against either party.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
GENESIS HEALTH VENTURES, INC.
By:
------------------------------------------
Name:
Title:
MULTICARE ACQUISITION CORP.
By:
------------------------------------------
Name:
Title:
GENESIS ELDERCARE CORP.
By:
------------------------------------------
Name:
Title: