EXHIBIT 1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of April 26, 1998 (this
"Agreement"), among GENESIS HEALTH VENTURES, INC., a Pennsylvania corporation
("Purchaser"), MANOR CARE, INC., a Delaware corporation and MANORCARE HEALTH
SERVICES, INC., a Delaware corporation (collectively, the "Stockholders", and
each, individually, a "Stockholder").
WHEREAS, Purchaser and its newly formed wholly owned
subsidiary ("Newco") have entered into an Agreement and Plan of Merger, dated as
of the date hereof (the "Merger Agreement"), with Vitalink Pharmacy Services,
Inc., a Delaware corporation (the "Company"), which Merger Agreement provides,
among other things, that the Company will merge with and into Newco pursuant to
the merger contemplated by the Merger Agreement (the "Merger"); and
WHEREAS, as of the date hereof, the Stockholders own (both
beneficially and of record) the number and class of shares of Common Stock, par
value $.01 per share, of the Company ("Company Common Stock") set forth opposite
their respective names on the signature pages of this Agreement; and
WHEREAS, as a condition to entering into the Merger Agreement,
Purchaser requires the Stockholders to enter into this Agreement governing the
voting and disposition of such number of shares of Company Common Stock now
owned by the Stockholders and so indicated on the signature pages of this
Agreement and which may hereafter be acquired by any of the Stockholders (all of
the shares of Company Common Stock, such shares, collectively, the "Shares").
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
1. Voting of Shares. Each Stockholder shall, until the
Termination Date (as hereinafter defined), cause the Shares it owns to be voted
at any meeting of the stockholders of the Company or in any consent in lieu of
such a meeting (i) in favor of adoption and approval of the Merger Agreement and
the Merger and the terms thereof and each of the other actions contemplated by
the Merger Agreement; (ii) against any other action or agreement that would,
directly or indirectly, result in (A) any extraordinary corporate transaction,
such as a merger, consolidation or other business combination involving the
Company or its subsidiaries; (B) a sale, lease or transfer of a
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material amount of assets of the Company or its subsidiaries or a
reorganization, recapitalization or liquidation of the Company or its
subsidiaries; (C) an election of new members to the board of directors of the
Company, except where the vote is cast in favor of the nominees of a majority of
the existing directors of the Company; or (D) any transaction that could
reasonably be expected to materially delay or postpone the consummation of the
Merger or cause a material breach by the Company of any covenant under the
Merger Agreement and (iii) against any action, agreement or transaction that is
intended or could reasonably be expected (A) to facilitate a person other than
the Purchaser in acquiring the Company or (B) to impede, interfere with, delay,
postpone, discourage or materially adversely affect the consummation of the
Merger (any of the foregoing in clause (ii) or clause (iii), a "Competing
Transaction").
The Stockholders shall elect to receive Preferred Stock with
respect to all of the shares of Company Common Stock owned by them. The
Stockholders shall not seek to assert any appraisal rights.
2. Irrevocable Proxy. Each Stockholder hereby irrevocably
appoints Purchaser, until the Termination Date, as its attorney and proxy
pursuant to the provisions of Section 212 of the Delaware General Corporation
Law with full power of substitution, to vote and otherwise act (by written
consent or otherwise) in accordance with the provisions of Section 1 of this
Agreement with respect to the Shares which each Stockholder is entitled to vote
at any meeting of the stockholders of the Company (whether annual or special and
whether or to an adjourned or postponed meeting) or in respect of any consent in
lieu of any such meeting or otherwise. This proxy and power of attorney is
irrevocable and coupled with an interest in favor of Purchaser. The Stockholder
will take such further action or execute such other instruments as may be
reasonably necessary to effectuate the intent of this proxy. Each Stockholder
hereby revokes all other proxies and powers of attorney with respect to the
Shares which it may have heretofore appointed or granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Stockholder with respect
thereto.
3. Limitation on Disposition or Encumbrance of Shares.
Each Stockholder hereby covenants and agrees that, except as contemplated by
this Agreement, the Stockholder shall not, and shall not offer or agree to, (i)
sell, transfer, tender, assign, hypothecate or otherwise dispose of, or create
or permit to exist any security interest, lien, claim, pledge, op-
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tion, right of first refusal, agreement, limitation on the Stockholder's voting
rights, charge or other encumbrance of any nature whatsoever with respect to the
Shares, (ii) tender any shares of Company Common Stock pursuant to any tender or
exchange offer, or (iii) grant any person a proxy or other right to vote or
direct the vote of any shares of Company Common Stock, except in order to comply
with Section 2; provided, however, that a Stockholder may transfer the Shares to
Mars, to New ManorCare Health Services, Inc., or to any of their respective
wholly owned subsidiaries if such transferee agrees to be bound by the terms of
this Agreement.
4. No Solicitation. (a) Each of the Stockholders agrees
that it shall not, directly or indirectly, (x) solicit, initiate or knowingly
facilitate or encourage (including by way of furnishing or disclosing nonpublic
information) any inquiries or the making of any offer or proposal by any
corporation, partnership, trust, person or other entity or group (a "Third
Party") with respect to, or that could reasonably be expected to lead to, a
Competing Transaction or (y) negotiate, explore or otherwise communicate in any
way with any Third Party with respect to any Competing Transaction or enter
into, approve or recommend any agreement, arrangement or understanding requiring
it to abandon, terminate or fail to consummate the Merger or any other
transactions contemplated by this Agreement.
(b) Each of the Stockholders shall, by the end of the
business day following receipt thereof (i) promptly notify the other party of
receipt by it of any inquiries, proposals or offers with respect to a Competing
Transaction or any request for nonpublic information relating to the Company in
connection with a Competing Transaction or for access to the Company's or any of
its Subsidiaries' properties, books or records by any third party that informs
its Board of Directors that such third party is considering making, or has made,
a proposal or offer with respect to a Competing Transaction, and indicate in
reasonable detail the identity of the party making the competing offer
(including the name of such party) and the terms and conditions of any such
proposal or offer and (ii) immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing, and it will take the necessary
steps to inform such individuals or entities of the obligations undertaken in
this Section 4.
5. Legend on Certificates. The certificate(s) evidencing
the Shares shall, prior to any transfer of such certificates, be endorsed with a
restrictive legend substantially as follows:
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THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A VOTING
AGREEMENT DATED AS OF APRIL 26, 1998 BETWEEN THE REGISTERED HOLDER
HEREOF AND GENESIS HEALTH VENTURES, INC., A COPY OF WHICH IS ON FILE AT
THE PRINCIPAL OFFICE OF THE COMPANY. THE HOLDER OF THIS CERTIFICATE, BY
ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY ALL THE TERMS OF SUCH
AGREEMENT, AS THE SAME IS IN EFFECT FROM TIME TO TIME.
6. Representations and Warranties of the Stockholders.
Each Stockholder hereby severally represents and warrants with respect to itself
and its ownership of the Shares to Purchaser as follows:
a. Authority Relative to this Agreement. The Stockholder
has all necessary power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of the Stockholder. This Agreement has been duly
and validly executed and delivered by the Stockholder and, assuming the due
authorization, execution and delivery by Purchaser, constitutes a legal, valid
and binding obligation of the Stockholder, enforceable against the Stockholder
in accordance with its terms, except that such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws affecting creditors' rights generally.
b. Conflict. The execution and delivery of this Agreement
by the Stockholder does not, and the performance of this Agreement by the
Stockholder will not, (i) require any consent, approval, authorization or permit
of, or filing with (other than as required under the Securities Exchange Act of
1934, as amended) or notification to any governmental or regulatory authority,
domestic or foreign, (ii) conflict with or violate the Certificate of
Incorporation, By-laws or other organizational documents of the Stockholder,
(iii) conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to the Stockholder or by which any property or asset of the
Stockholder is bound, or (iv) result in any breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or other encumbrance of any
nature whatsoever on any property or asset of the Stockholder pursuant to, any
note, bond, mortgage, indenture,
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contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which the Stockholder is a party or by which the Stockholder or
any property or asset of the Stockholder is bound, in each case, except as would
not materially impair the ability of the Stockholder to perform hereunder.
c. Title to the Shares. The shares of Company Common Stock
owned by the Stockholder as identified on the signature pages hereto are all the
securities of the Company owned, either of record or beneficially, by the
Stockholder. The Stockholder owns all such shares of Company Common Stock free
and clear of all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on the Stockholder's voting rights,
charges and other encumbrances of any nature whatsoever, and, except pursuant to
this Agreement, the Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to any of the Shares.
7. Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to the Stockholders that Purchaser has all
necessary power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution, delivery and performance of
this Agreement by Purchaser have been duly authorized by all necessary corporate
action on the part of Purchaser. This Agreement has been duly and validly
executed and delivered by Purchaser and, assuming the due authorization,
execution and delivery by the Stockholders, constitutes a legal, valid and
binding obligation of Purchaser enforceable in accordance with its terms, except
that such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
affecting creditors' rights generally.
8. Certain Events. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Company Common Stock, or the
acquisition of additional shares of Company Common Stock by the Stockholder,
this Agreement and the obligations hereunder shall attach to any additional
shares of Company Common Stock or other voting securities of the Company issued
to or acquired by the Stockholder. In the event of a stock dividend or
distribution, or any change in Company Common Stock by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged.
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9. Termination of Agreement. For the purposes of this
Agreement, "Termination Date" shall mean the earliest of (i) the date that is
twelve months after the date of termination of the Merger Agreement for any
reason (other than pursuant to Section 10.01(a) of the Merger Agreement or by
the Company pursuant to Section 10.01(i) of the Merger Agreement) if, at the
time of such termination, an Acquisition Transaction (as defined in the Merger
Agreement) has been commenced or communicated to the Company or publicly
proposed or disclosed (other than such an Acquisition Transaction which has been
permanently abandoned or withdrawn by the other party thereto); or (ii)
immediately upon termination of the Merger Agreement by the Company pursuant to
Section 10.01(i) of the Merger Agreement; or (iii) immediately upon termination
of the Merger Agreement by the Purchaser unless, at the time of such
termination, an Acquisition Transaction has been commenced or communicated to
the Company or publicly proposed or disclosed (other than such an Acquisition
Transaction which has not been permanently abandoned or withdrawn by the other
party thereto); or (iv) on the date that is three months after the date of
termination of the Merger Agreement by the Company (other than pursuant to
Section 10.01(i) of the Merger Agreement) unless, at the time of such
termination, an Acquisition Transaction has been commenced or communicated to
the Company or publicly proposed or disclosed (other than such an Acquisition
Transaction which has not been permanently abandoned or withdrawn by the other
party thereto); or (v) the termination of this Agreement or the Merger Agreement
by the mutual written agreement of the parties hereto.
10. Indemnification. Each Stockholder agrees, jointly and
severally, to indemnify and hold harmless the Purchaser, its directors, its
officers who sign the Joint Proxy Statement/Prospectus of the Purchaser, and
each person, if any, who controls the Purchaser within the meaning of either
Section 15 of the Securities Act of 1933, as amended, or Section 20 of the
Securities Exchange Act of 1934, as amended, from and against any and all
losses, claims, damages and liabilities (including, without limitation, the
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Joint Proxy
Statement/Prospectus (as amended or supplemented if the Purchaser shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to such Stockholder
furnished by such Stockholder in writing expressly for use therein.
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11. Miscellaneous.
a. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof without the requirement for
posting of a bond, in addition to any other remedy to which a party may be
entitled at law or in equity. Entire Agreement. This Agreement, including the
documents and instruments referred to herein, embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements and understandings among the parties
with respect thereto. There are no representations, promises, warranties,
covenants or undertakings by any party, other than those expressly set forth or
referred to herein and therein.
b. Assignment; Third Party Beneficiaries. This Agreement
and all of the provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns, but
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto without the prior written consent
of the other parties. This Agreement is not intended to confer any rights or
remedies hereunder upon any third party except as expressly provided herein.
c. Amendment and Modification; Waiver. This Agreement may
be amended, modified or supplemented only by written agreement signed by the
parties hereto. Any extension of time or waiver of any provision hereof shall
only be valid if set forth in an instrument in writing signed by the party or
parties to be bound thereby. Any waiver or failure to insist upon strict
compliance with any provision hereof shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
e. Severability. The validity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
f. Notices. All notices and other communications hereunder
shall be in writing and shall be delivered personally, by next-day courier or
mailed by registered or certified mail (return receipt requested), first-class
postage prepaid, or sent by facsimile, to the parties at the addresses specified
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below (or at such other address for a party as shall be specified by like
notice; provided that notices of a change of address shall be effective only
upon receipt thereof). Any such notice shall be effective upon receipt, if
personally delivered or telecommunicated, one day after delivery to a courier
for next-day delivery, or three days after mailing, if deposited in the U.S.
mail, first-class postage prepaid.
if to Purchaser:
Genesis Health Ventures, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
if to any Stockholder:
Manor Care, Inc.
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
g. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS EXECUTED IN AND TO BE PERFORMED IN THAT STATE WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
h. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
i. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
j. Time of the Essence. The parties hereto agree that time
shall be of the essence in the performance of all obligations hereunder.
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VOTING AGREEMENT SIGNATURE PAGE
-------------------------------
IN WITNESS WHEREOF, Purchaser and the Stockholders have duly
executed this Agreement, as of the date first written above.
PURCHASER:
---------
By: /s/ Xxx X. Xxxxxxxxx
--------------------------------------
Name: Xxx X. Xxxxxxxxx
Title: General Counsel --
Corporate and Secretary
NUMBER OF SHARES OF
STOCKHOLDERS: COMMON STOCK OWNED:
------------ ------------------
MANOR CARE, INC. 0
/s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: 00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx
00000
MANORCARE HEALTH SERVICES, INC. 13,000,000
/s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: 00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx
00000
