-----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, G1u2/p4IfpfE1doFJVuC2cUWmyiC7ssqeJTeQ9vLEHMTSNYp+3RZmR3PGlnTIpg/ dTR0C5sRaHfgmnFz5IJ5pw== 0000893220-02-001467.txt : 20021205 0000893220-02-001467.hdr.sgml : 20021205 20021204213533 ACCESSION NUMBER: 0000893220-02-001467 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20021205 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NCS HEALTHCARE INC CENTRAL INDEX KEY: 0001004990 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DRUG STORES AND PROPRIETARY STORES [5912] IRS NUMBER: 341816187 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-47039 FILM NUMBER: 02849193 BUSINESS ADDRESS: STREET 1: 3201 ENTERPRISE PKWY STREET 2: STE 2200 CITY: BEACHWOOD STATE: OH ZIP: 44122 BUSINESS PHONE: 2165143350 MAIL ADDRESS: STREET 1: 1400 MCDONALD INVESTMENT CENTER STREET 2: 800 SUPERIOR AVE CITY: CLEVELAND STATE: OH ZIP: 44114 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NCS HEALTHCARE INC CENTRAL INDEX KEY: 0001004990 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DRUG STORES AND PROPRIETARY STORES [5912] IRS NUMBER: 341816187 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: 3201 ENTERPRISE PKWY STREET 2: STE 2200 CITY: BEACHWOOD STATE: OH ZIP: 44122 BUSINESS PHONE: 2165143350 MAIL ADDRESS: STREET 1: 1400 MCDONALD INVESTMENT CENTER STREET 2: 800 SUPERIOR AVE CITY: CLEVELAND STATE: OH ZIP: 44114 SC 14D9/A 1 w66447sc14d9za.txt AMENDMENT NO.11 TO SCHEDULE 14D-9 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ------------------ SCHEDULE 14D-9 (AMENDMENT NO. 11) SOLICITATION/RECOMMENDATION STATEMENT UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934 ------------------ NCS HEALTHCARE, INC. (Name of Subject Company) NCS HEALTHCARE, INC. (Name of Person Filing Statement) CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE (Title of Class of Securities) 62887410 (CUSIP Number of Class A Common Stock) CLASS B COMMON STOCK, PAR VALUE $0.01 PER SHARE (Title of Class of Securities) NOT APPLICABLE (CUSIP Number of Class B Common Stock) ------------------ MARY BETH LEVINE, ESQ. SENIOR VICE PRESIDENT AND CORPORATE COUNSEL NCS HEALTHCARE, INC. 3201 ENTERPRISE PARKWAY, SUITE 220 BEACHWOOD, OHIO 44122 (216) 514-3350 (Name, Address and Telephone Number of Person Authorized to Receive Notice and Communications on Behalf of the Person Filing Statement) ------------------ WITH COPIES TO: H. JEFFREY SCHWARTZ, ESQ. ROBERT B. PINCUS, ESQ. MEGAN LUM MEHALKO, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP ONE RODNEY SQUARE 2300 BP TOWER, 200 PUBLIC SQUARE WILMINGTON, DELAWARE 19801 CLEVELAND, OHIO 44114 (302) 651-3000 (216) 363-4500
[ ] Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. This Amendment No. 11 to Schedule 14D-9 amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 originally filed by NCS HealthCare, Inc. (the "Company" or "NCS") on August 20, 2002 and amended on August 21, 2002, August 22, 2002, September 12, 2002, September 30, 2002, October 8, 2002, October 22, 2002, October 29, 2002, October 30, 2002, November 25, 2002 and December 2, 2002 relating to the tender offer by NCS Acquisition Corp. (the "Offeror"), a Delaware corporation and a wholly owned subsidiary of Omnicare, Inc., a Delaware corporation ("Omnicare"), for all of the outstanding shares of Class A Common Stock, par value $0.01 per share, of NCS and Class B Common Stock, par value $0.01 per share, of NCS, at a price of $3.50 per share, net to the seller in cash (the "Offer"). Except as otherwise indicated, the information set forth in the original Schedule 14D-9 and Amendments No. 1 through 10 thereto remains unchanged. ITEM 8. ADDITIONAL INFORMATION (b) LEGAL MATTERS Item 8(b) of the Schedule 14D-9 is hereby amended to add the following at the end thereof: On December 4, 2002, the Supreme Court of the State of Delaware vacated its November 26, 2002 decision denying the plaintiffs' request for an interlocutory appeal from the November 22, 2002 decision of the Chancery Court denying the plaintiffs' motion for a preliminary injunction in the consolidated shareholders litigation brought against NCS (Consolidated C.A. No. 19786). As a result of the Supreme Court's decision, NCS postponed its special meeting of stockholders to vote on the Genesis Merger, which was scheduled for December 5, 2002, to Thursday, December 12, 2002. The foregoing paragraph includes a summary of the court order, and is qualified in its entirety by the full text of the court order, a copy of which is filed as Exhibit 99.21 hereto, and is incorporated herein by reference. ITEM 9. EXHIBITS Item 9 of the Schedule 14D-9 is hereby supplemented by adding the following additional exhibits: EXHIBIT NO. Exhibit 99.21 Order of the Supreme Court of the State of Delaware, issued on December 4, 2002.* Exhibit 99.22 Press Release issued by the Company on December 4, 2002.* - ---------- * Filed herewith. 2 SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. NCS HEALTHCARE, INC. By: /s/ Kevin B. Shaw ---------------------------------------- Kevin B. Shaw President and Chief Executive Officer Dated: December 4, 2002 EX-99.21 3 w66447exv99w21.txt ORDER OF SUPREME COURT OF THE STATE OF DEL. Exhibit 99.21 IN THE SUPREME COURT OF THE STATE OF DELAWARE OMNI CARE, INC., ) ) No. 605, 2002 Plaintiff Below, ) Appellant, ) Court Below: Court of Chancery ) of the State of Delaware in and for v. ) New Castle County ) C.A. No. 19800 NCS HEALTHCARE, INC., ) JON H. OUTCALT, KEVIN B. ) SHAW, BOAKE A. SELLS, ) RICHARD L. OSBORNE, ) GENESIS HEALTH VENTURES ) INC., and GENEVA SUB, INC., ) Defendants Below, ) Appellees. ) ROBERT M. MILES, GUILLERMO ) MARTI, ANTHONY NOBLE, ) No. 649, 2002 JEFFREY TREADWAY, TILLIE ) SALTZMAN, DOLPHIN LIMITED ) Court Below: Court of Chancery PARTNERSHIP I, L.P., RAMESH ) of the State of Delaware in and for MEHAN, RENEE MEHAN, RENEE ) New Castle County MEHAN IRA, SAROJ MEHAN, ) C.A. No. 19786 MANEESH MEHAN, RAHUL ) MEHAN, JOEL MEHAN, LAJIA ) MEHAN, DARSHAN MEHAN IRA, ) DANSHAL MEHAN (ROLLOVER ) IRA), ARSH N. MEHAN, ARSH N. ) MEHAN (ROTH IRA), ASHOK K. ) MEHAN, and ASWOK K. MEHAN ) IRA, ) Plaintiffs Below- ) Appellants, ) v. ) ) JON H. OUTCALT, KEVIN E. ) SHAW, BOAKE A. SELLS, ) RICHARD I. OSBORNE, GENESIS ) HEALTH VENTURES, INC., ) GENESIS SUB, INC., and NCS ) HEALTHCARE, INC., ) ) Defendants Below- ) Appellees. ) CONSOLIDATED Before VEASEY, Chief Justice, WALSH, HOLLAND, BERGER and STEELE, Justices, constituting the Court en Banc. This 4th day December, 2002, it appears to the Court that: (1) This Court entered an Order in appeal No. 649, 2002 on November 26, 2002, refusing the appellants' application for an interlocutory appeal of the order of the Court of Chancery dated November 22, 2002. (2) The Court has determined that the application for an interlocutory appeal was improvidently refused and that this application meets one or more of the criteria of Supreme Court Rules 4 and 42 and should be granted to be heard and determined by the Court en Banc. (3) The Court has determined that appeal No. 605, 2002 ,and appeal No. 649, 2002 arise from the same operative facts and that, in the interest of judicial economy, the appeals should be consolidated. -2- (4) The Court has determined that the briefing and argument on the consolidated appeal should be expedited. NOW THEREFORE, IT IS ORDERED as follows: (A) The Order of this Court dated November 26, 2002, refusing the application for an interlocutory appeal in action No. 649, 2002 is VACATED. (B) The application for an interlocutory appeal of the order of the Court of Chancery in appeal No. 649, 2002 dated November 22, 2002, is GRANTED. (C) Appeal No. 605, 2002 and appeal No. 649. 2002 are hereby CONSOLIDATED. All papers subsequently filed in this consolidated appeal shall be captioned as above. (D) Oral arguments in the consolidated appeal will be heard on Tuesday, December 10, 2002, in Dover in the following order: (i) At 10:00 a.m. oral argument in appeal No. 649, 2002 will be held with each side having 25 minutes to present oral argument. (ii) At 1l:00 a.m. oral argument in appeal No. 605, 2002 will be held with each side having 25 minutes to present oral argument. (E) There will be no further briefing in appeal No. 605, 2002. The briefing in appeal No. 649, 2002 will proceed as follows: -3- (i) On or before 12:00 noon on Friday, December 6, 2002, appellants shall file in the Supreme Court in Dover, Wilmington and Georgetown (a) the briefs of both sides filed in the Court of Chancery; and (b) their opening brief and appendix in this Court addressing the memorandum opinion and order of the Court of Chancery dated November 22, 2002. Appellants shall file an original and 6 complete sets of the above in Wilmington and 2 complete sets in Dover and Georgetown. (ii) On or before 10:00 a.m. on Monday, December 9, 2002, appellees shall file in the Supreme Court in Dover and Wilmington their answering brief and appendix. Appellees shall file an original and 8 complete sets of briefs and appendices in Wilmington and 2 sets in Dover. (iii) On or before 4:00 p.m. on Monday, December 9,2002, appellants may file in the Supreme Court in Dover and Wilmington their reply brief and appendix, if any. Appellants shall file an original and 8 complete sets of briefs and appendices in Wilmington and 2 sets in Dover. BY THE COURT: /s/ E. Norman Veasey ------------------------------------------- Chief Justice -4- EX-99.22 4 w66447exv99w22.txt PRESS RELEASE ISSUED BY COMPANY DECEMBER 4,2002 Exhibit 99.22 FOR IMMEDIATE RELEASE Contact: Gerald D. Stethem Senior Vice President & Chief Financial Officer NCS HealthCare, Inc. 216-378-6808 NCS HEALTHCARE POSTPONES VOTE ON GENESIS MERGER. DELAWARE SUPREME COURT ACCEPTS INTERLOCUTORY APPEAL Beachwood, Ohio - (December 4, 2002) NCS HealthCare, Inc. (NCSS.OB) announced today that it is postponing its special meeting of shareholders to vote on the Genesis Health Ventures, Inc. (Nasdaq: GHVI) merger. As a result of this afternoon's decision by the Delaware Supreme Court, described below, the meeting has been rescheduled from December 5, 2002 to December 12, 2002. NCS and Genesis currently intend to close their merger as soon as practicable following that meeting. Earlier today, the Delaware Supreme Court approved a request for an interlocutory appeal of the Delaware Chancery Court's recent decision denying a preliminary injunction that would have delayed or possibly prevented NCS's proposed merger with Genesis. Previously, the Delaware Supreme Court had denied this request for an interlocutory appeal. The Court has now decided to hear the appeal on December 10, 2002, along with certain other appeals that were already pending. NCS is represented by special outside legal counsel Benesch, Friedlander, Coplan & Aronoff LLP and Skadden, Arps, Slate, Meagher & Flom LLP and financial advisor Candlewood Partners LLC. * * * * * NCS HealthCare, Inc. is a leading provider of pharmaceutical and related services to long-term care facilities, including skilled nursing centers, assisted living facilities and hospitals. NCS serves approximately 200,000 residents of long-term care facilities in 33 states and manages hospital pharmacies in 10 states. In connection with the special meeting of stockholders relating to NCS's proposed merger with Genesis Health Ventures, Inc. and a pending tender offer from Omnicare, Inc., NCS HealthCare, Inc. has filed certain materials with the Securities and Exchange Commission, including a definitive proxy statement and a Solicitation/Recommendation Statement on Schedule 14D-9. SECURITY HOLDERS ARE URGED TO READ THESE MATERIALS BECAUSE THEY CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain a free copy of these materials, as well as other materials filed with the Securities and Exchange Commission concerning NCS HealthCare, Inc., at the Securities and Exchange Commission's website at http://www.sec.gov. In addition, these materials and other documents may be obtained for free from NCS HealthCare, Inc. by directing a request to NCS HealthCare, Inc. at 3201 Enterprise Parkway, Suite 220, Beachwood, Ohio 44122; Attn: Investor Relations. NCS HealthCare, Inc. and its directors and executive officers may be deemed to be participants in the solicitation of proxies from the Company's stockholders with respect to the special meeting described above. Information concerning such participants is contained in NCS HealthCare's proxy statement relating to the proposed merger with Genesis Health Ventures, Inc. -----END PRIVACY-ENHANCED MESSAGE-----