Exhibit 10.2
VOTING AGREEMENT
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This VOTING AGREEMENT (this "AGREEMENT"), dated as of July 28,
2002, is by and among Kevin B. Shaw (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:
Representations and Warranties. The Stockholder hereby represents,
warrants and covenants to each of the Company and Parent as follows:
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.
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
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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.
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.
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.
Covenants. Until the termination of this Agreement in accordance with
Section 8, the Stockholder hereby agrees as follows:
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.
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
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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.
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).
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.
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.
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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.
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.
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.
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.
Amendments; Termination; Modification.
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).
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
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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.
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.
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.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
NCS HEALTHCARE, INC.
By: /s/ Jon H. Outcalt
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Name: Jon H. Outcalt
Title: Chairman of the Board
GENESIS HEALTH VENTURES, INC.
By: /s/ George V. Hager, Jr.
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Name: George V. Hager, Jr.
Title: Executive Vice President and Chief
Financial Officer
KEVIN B. SHAW
By: /s/ Kevin B. Shaw
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Name: Kevin B. Shaw
EXHIBIT A
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SECURITIES BENEFICIALLY OWNED
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Kevin B. Shaw 28,905 Shares of Company Class A Common Stock
126,999 Total Number of Vested Class A Common Stock Options
100,001 Total Number of Non-Vested Class A Common Stock
Options
1,141,134 Shares of Company Class B Common Stock