Exhibit (a)(5)(D)
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
----------------------
Name: Robert H. Fish
Title: Chief Executive Officer
OMNICARE, INC.
By: /s/ Joel F. Gemunder
----------------------
Name: Joel F. Gemunder
Title: President and Chief
Executive Officer
[Signature Page to Termination Agreement]