-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JAJxJ+t+hRUKWxV+ZGMRsS8yjy+z8NQNM+GjMRme3oHcjOIIpg+c5urwln1k6SY6 n4gFqMZgMiwwbJjeTJQzeA== 0000950116-02-002811.txt : 20021217 0000950116-02-002811.hdr.sgml : 20021217 20021217142222 ACCESSION NUMBER: 0000950116-02-002811 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20021215 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20021217 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENESIS HEALTH VENTURES INC /PA CENTRAL INDEX KEY: 0000874265 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SKILLED NURSING CARE FACILITIES [8051] IRS NUMBER: 061132947 STATE OF INCORPORATION: PA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-33217 FILM NUMBER: 02859973 BUSINESS ADDRESS: STREET 1: 101 EAST STATE STREET CITY: KENNETT SQUARE STATE: PA ZIP: 19348 BUSINESS PHONE: 6104446350 MAIL ADDRESS: STREET 1: 101 EAST STATE STREET CITY: KENNETT SQUARE STATE: PA ZIP: 19348 8-K 1 eight-k.txt 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported): December 15, 2002 GENESIS HEALTH VENTURES, INC. ---------------------------------------------------------------- (Exact name of registrant as specified in its charter) Pennsylvania 0-33217 06-1132947 - ------------------------------- ------------------------ ------------------- (State or other jurisdiction of (Commission File Number) (IRS Employer incorporation) Identification No.) 101 East State Street, Kennett Square, Pennsylvania 19348 - -------------------------------------------- ------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (610) 444-6350 -------------- Not Applicable - -------------------------------------------------------------------------------- (Former name or former address, if changed since last report) Item 5. Other Events ------------ Background ---------- On July 28, 2002, Genesis Health Ventures, Inc. ("Genesis"), Geneva Sub, Inc., a wholly owned subsidiary of Genesis ("Sub"), and NCS HealthCare, Inc. ("NCS") entered into a definitive Agreement and Plan of Merger (the "Genesis/NCS Merger Agreement"), pursuant to which Sub would merge with and into NCS (the "Merger"), with NCS surviving as a wholly owned subsidiary of Genesis. On August 1, 2002, Omnicare, Inc. ("Omnicare") filed a lawsuit in the Court of Chancery of the State of Delaware and subsequently filed an amended complaint on August 12, 2002 and a second amended complaint on September 23, 2002 (the "Omnicare Complaint"). The Omnicare Complaint sought various relief, including an injunction against the completion of the Genesis/NCS merger. On August 8, 2002, Omnicare also commenced a tender offer for all outstanding shares of NCS Class A common stock and NCS Class B common stock at a price per share of $3.50 in cash. On December 11, 2002, the Court of Chancery of the State of Delaware, pursuant to an order of the Delaware Supreme Court dated December 10, 2002 which reversed prior determinations of the Court of Chancery, entered an order preliminarily enjoining the consummation of the Merger pending further proceedings. On December 12, 2002, Omnicare increased its offer to acquire NCS to a price per share of $5.50 in cash. NCS was precluded from accepting this offer so long as the Genesis/NCS Merger Agreement and related Voting Agreements were in effect. At various points in time from and after December 12, 2002, NCS and Omnicare each requested that Genesis consent to the termination of the Genesis/NCS Merger Agreement and, as a result, not seek to enforce its rights under the Genesis/NCS Merger Agreement or to pursue court proceedings through to final resolution, so that NCS would be free to accept and enter into Omnicare's offer. Termination of Genesis/NCS Merger Agreement ------------------------------------------- On December 15, 2002, Genesis and Omnicare entered into a Termination and Settlement Agreement (the "Termination and Settlement Agreement"). Pursuant to the Termination and Settlement Agreement, Genesis agreed to terminate the Genesis/NCS Merger Agreement on Monday, December 16, 2002 by sending notice thereof to NCS, and Omnicare agreed to pay to Genesis, an amount in cash equal to $22,000,000 less any termination fees paid by or on behalf of NCS to Genesis under the Genesis/NCS Merger Agreement. In addition, pursuant to the Termination and Settlement Agreement, Genesis and Omnicare each agreed to release the other party from any claims arising from the Genesis/NCS Merger Agreement and not to commence any action against the other party arising out of or in connection with the Genesis/NCS Merger Agreement. On December 16, 2002, Genesis provided written notice to NCS terminating the Genesis/NCS Merger Agreement (the "Letter of Termination"). The foregoing summaries of the Termination and Settlement Agreement and the Letter of Termination are qualified in their entireties to the full text of such documents, which are attached hereto as Exhibits 99.1 and 99.2, respectively, and incorporated herein by reference. Item 7. Financial Statements and Exhibits --------------------------------- C. Exhibits 99.1 Termination and Settlement Agreement, dated as of December 15, 2002, by and among Genesis Health Ventures, Inc., Geneva Sub, Inc. and Omnicare, Inc. 99.2 Letter of Termination dated December 16, 2002 from Genesis Health Ventures, Inc. to NCS HealthCare, Inc. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. GENESIS HEALTH VENTURES, INC. Date: December 17, 2002 By: /s/ George V. Hager, Jr. ------------------------------ George V. Hager, Jr. Executive Vice President and Chief Financial Officer Exhibit Index 99.1 Termination and Settlement Agreement, dated as of December 15, 2002, by and among Genesis Health Ventures, Inc., Geneva Sub, Inc. and Omnicare, Inc. 99.2 Letter of Termination dated December 16, 2002 from Genesis Health Ventures, Inc. to NCS HealthCare, Inc. EX-99 3 ex99-1.txt EXHIBIT 99.1 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 ------------------------------------------ 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] EX-99 4 ex99-2.txt EXHIBIT 99.2 Exhibit 99.2 [Genesis letterhead] December 16, 2002 Via Telecopy and Overnight Courier NCS HealthCare, Inc. 3201 Enterprise Parkway, Suite 220 Beachwood, Ohio 44122 Attn: Jon H. Outcalt Chairman of the Board of Directors Dear Mr. Outcalt: Reference is made to the Agreement and Plan of Merger (the "Merger Agreement"), dated as of July 28, 2002, by and among Genesis Health Ventures, Inc. ("Genesis"), Geneva Sub, Inc. and NCS HealthCare, Inc. ("NCS"). All capitalized terms not otherwise defined herein shall the meaning ascribed to such terms in the Merger Agreement. By this letter, Genesis hereby terminates the Merger Agreement pursuant to Section 7.1(g)(iii) of the Merger Agreement. Accordingly, pursuant to Sections 7.2(b) and 7.2(d) of the Merger Agreement, NCS is hereby obligated to pay to Genesis, not later than the close of business on December 17, 2002 and by wire transfer of immediately available funds, a Termination Fee in the amount of $6,000,000. Pursuant to Section 7.2(a) of the Merger Agreement, such payment obligation survives termination of the Merger Agreement. Genesis's wire transfer instructions will be forwarded shortly under separate cover. Very truly yours, GENESIS HEALTH VENTURES, INC. By: /s/ George V. Hager, Jr. ----------------------------------- Name: George V. Hager, Jr. Title: Executive Vice President and Chief Financial Officer cc: Gerald D. Stethem NCS HealthCare, Inc. H. Jeffrey Schwartz, Esq. Megan L. Mehalko, Esq. Benesch, Friedlander, Coplan & Aronoff, LLP Mark Gordon, Esq. 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