Exhibit 99.1
Termination and Settlement Agreement
TERMINATION AND SETTLEMENT AGREEMENT, dated as of December 15,
2002 (this "Agreement"), by and among Genesis Health Ventures, Inc., a
Pennsylvania corporation ("Genesis"), Geneva Sub, Inc., a Delaware corporation
and a direct or indirect wholly owned subsidiary of Genesis ("Sub"), and
Omnicare, Inc., a Delaware corporation ("Omnicare").
WHEREAS, Genesis, Sub and NCS HealthCare, Inc., a Delaware
corporation (the "NCS") have previously entered into that certain Agreement and
Plan of Merger, dated as of July 28, 2002 (the "Genesis Merger Agreement").
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to such terms in the Genesis Merger Agreement;
WHEREAS, the Delaware Court of Chancery has entered an order
preliminarily enjoining the consummation of the Merger pending further
proceedings;
WHEREAS, Omnicare has made an irrevocable offer to acquire NCS
at a purchase price of $5.50 per share of NCS Common Stock, which transaction
cannot occur so long as the Genesis Merger Agreement and related Voting
Agreements are in effect;
WHEREAS, NCS has previously requested, and Omnicare does now
request, that Genesis and Sub consent to the termination of the Genesis Merger
Agreement (which will result in the termination of the related Voting
Agreements, as well), and, as a result, not seek to enforce their rights under
the Genesis Merger Agreement or to pursue court proceedings through to final
resolution, so that NCS will be free to accept and enter into Omnicare's offer;
WHEREAS, Genesis and Sub have incurred direct and indirect
expenses in connection with the Genesis Merger Agreement and related
transactions far in excess of the Termination Fee provided for in the Genesis
Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth in
this Agreement, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Genesis hereby agrees to terminate the Genesis Merger Agreement
pursuant to Section 7.1(g)(iii) thereof on Monday, December 16, 2002 by
sending notice thereof to NCS on such day (or, if necessary, pursuant
to such other termination rights as may be available thereafter), and
Omnicare hereby agrees to pay to Genesis, prior to the Omnicare Closing
(as defined below), an amount in cash equal to $22,000,000 (the
"Termination Payment"), less the amount of any Termination Fee (as
defined in the Genesis Merger Agreement) actually paid by or on behalf
of NCS to Genesis.
2. The term "Omnicare Closing" means the consummation of any transaction
involving Omnicare or any of its affiliates, on the one hand, and NCS
or any of its securities or securityholders on the other, which
transaction is of any of the types specified in the definition of
"Acquistion Proposal", as such term is used in the Genesis Merger
Agreement.
3. The following provisions shall become effective and binding if and
when, and only if and when, Genesis receives the Termination Payment as
provided in paragraph 1 hereof:
(a) Genesis and Sub do hereby, on behalf of
themselves, their Affiliated Parties (as defined
below), successors and assigns, release, remise,
acquit, and forever discharge Omnicare and any of its
Affiliated Parties of and from all, and all manner
of, past, present, and future claims, complaints,
actions, causes of action, promises, covenants,
duties, damages (whether compensatory, consequential,
punitive, or exemplary), and any and all suits of
law, or in equity, and any liabilities of any kind of
nature whatsoever arising from the Genesis Merger
Agreement including but not limited to any claim for
specific performance of the Genesis Merger Agreement
and any claim for damages for breach of the Genesis
Merger Agreement.
(b) Omnicare does hereby, on behalf of itself and its
Affiliated Parties, successors and assigns, release,
remise, acquit, and forever discharge Genesis and Sub
and their respective Affiliated Parties of and from
all, and all manner of, past, present, and future
claims, complaints, actions, causes of action,
promises, covenants, duties, damages (whether
compensatory, consequential, punitive, or exemplary),
and any and all suits of law, or in equity, and any
liabilities of any kind of nature whatsoever arising
from the Genesis Merger Agreement including but not
limited to any claim for specific performance of the
Genesis Merger Agreement and any claim for damages
for breach of the Genesis Merger Agreement.
(c) Neither Omnicare, Genesis nor Sub shall, directly
or indirectly, in its own name or through another,
commence any action, litigation, suit, arbitration or
other proceeding, or assert any claim or demand,
against any one or more of the other parties or their
respective affiliates, directors, officers,
employees, representatives, attorneys and agents
("Affiliated Parties") and successors and assigns in
any manner arising out of or in connection with any
subject matter for which the release and discharge
set forth in this paragraph 3 hereof is given;
provided that nothing contained in paragraph 3 hereof
shall release any person from any claim or liability
under this Agreement.
4. Omnicare agrees not to seek to, or to take any action to (or that could
reasonably be expected to) cause or encourage NCS or any of its
Affiliated Parties or stockholders to seek to challenge any provision
of this Agreement. Genesis agrees that it shall not seek to impede or
challenge any agreement entered into between NCS and Omnicare with
respect to any Acquisition Proposal.
5. The Termination Payment shall be made by wire transfer of immediately
available funds to an account to be specified in writing by Genesis.
6. This Termination Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of
conflicts of laws thereof.
7. This Agreement may be executed in counterparts, which together shall
constitute one and the same termination agreement.
IN WITNESS WHEREOF, Genesis, Sub and Omnicare have signed this
Agreement as of the date first written above.
GENESIS HEALTH VENTURES, INC.
By: /s/ Robert H. Fish
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Name: Robert H. Fish
Title: Chief Executive Officer
GENEVA SUB, INC.
By: /s/ Robert H. Fish
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Name: Robert H. Fish
Title: Chief Executive Officer
OMNICARE, INC.
By: /s/ Joel F. Gemunder
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Name: Joel F. Gemunder
Title: President and Chief Executive Officer
[Signature Page to Termination Agreement]