-----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, BxMqqjDuUPoyWWoTPbtcPm9Yg1UevnLnCf524WyyzTz8AxW/wL6qR79d7r8HZUKj 3lrH5nhWDNzMSJ/Iag9NgQ== 0000893220-02-001483.txt : 20021212 0000893220-02-001483.hdr.sgml : 20021212 20021211210845 ACCESSION NUMBER: 0000893220-02-001483 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20021212 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: 02855176 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 w66731sc14d9za.txt AMENDMENT NO.14 TO SCHEDULE 14D-9 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 SCHEDULE 14D-9 (AMENDMENT NO. 14) 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, BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP MEAGHER & FLOM LLP 2300 BP TOWER, 200 PUBLIC SQUARE ONE RODNEY SQUARE CLEVELAND, OHIO 44114 WILMINGTON, DELAWARE 19801 (216) 363-4500 (302) 651-3000 [ ] Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. This Amendment No. 14 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, December 2, 2002, December 5, 2002, December 9, 2002 and December 11, 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 13 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 11, 2002, the Chancery Court issued a preliminary injunction in the consolidated proceedings of the Delaware Lawsuit and the shareholders litigation brought against NCS, enjoining the implementation of the Genesis Merger, including the special meeting of shareholders to vote on that transaction which was scheduled for December 12, 2002. Accordingly, the special meeting of shareholders has been postponed. The foregoing paragraph includes a summary of the preliminary injunction and is qualified in its entirety by the full text of the preliminary injunction, a copy of which is filed as Exhibit 99.27 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 99.27 Preliminary Injunction issued by the Chancery Court of the State of Delaware on December 11, 2002.* Exhibit 99.28 Press Release issued by the Company on December 11, 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 11, 2002 EX-99.27 3 w66731exv99w27.txt PRELIMINARY INJUNCTION Exhibit 99.27 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY - ---------------------------------------------------X OMNICARE, INC., : : Plaintiff, : : v. : C.A. No. 19800 : NCS HEALTHCARE, INC., JON H. OUTCALT, : KEVIN B. SHAW, BOAKE A. SELLS, : RICHARD L. OSBOURNE, GENESIS HEALTH : VENTURES, INC. and GENEVA SUB, INC., : : : Defendants. : - ---------------------------------------------------X IN RE NCS HEALTHCARE; INC, : Consolidated SHAREHOLDERS LITIGATION : C.A. No. 19786 - ---------------------------------------------------X PRELIMINARY INJUNCTION Pursuant to the Order entered by the Delaware Supreme Court on December 10, 2002 (the "Order"), 1. Defendants NCS Healthcare, Inc. ("NCS"), Jon H. Outcalt, Kevin G. Shaw, Boake A. Sells, Richard L. Osborne, Genesis Health Ventures, Inc. ("Genesis"), and Geneva Sub, Inc. ("Geneva Sub") (collectively referred to as "Defendants") and all those acting in concert with them are preliminarily enjoined from taking any actions to consummate, implement, effectuate, validate, or enforce the Agreement and Plan of Merger by and among Genesis, Geneva Sub and NCS dated as of July 28, 2002 (the "Genesis Merger Agreement"), including but not limited to presenting the Genesis Merger Agreement to the NCS stockholders for approval; 2. Plaintiffs shall post a bond in the amount of $10,000.00, without surety. SO ORDERED this 1lth day of December, 2002. /s/Stephen P. Lamb ------------------ Vice Chancellor EX-99.28 4 w66731exv99w28.txt PRESS RELEASE DATED DECEMBER 11, 2002 Exhibit 99.28 FOR IMMEDIATE RELEASE Contact: Gerald D. Stethem Senior Vice President & Chief Financial Officer NCS HealthCare, Inc. 216-378-6808 NCS HEALTHCARE ANNOUNCES DELAWARE COURT DECISION; SPECIAL MEETING ENJOINED Beachwood, Ohio - (December 11, 2002) NCS HealthCare, Inc. (NCSS.OB) announced today that the Delaware Chancery Court had entered an order preliminarily enjoining the implementation of NCS's proposed merger with Genesis Health Ventures, Inc., including the special meeting of shareholders to vote on that transaction which was scheduled for December 12, 2002. Accordingly, the special meeting of shareholders has been postponed. NCS intends to seek an interlocutory appeal of the Delaware Chancery Court's order, which the Delaware Chancery Court has agreed to certify. * * * * * 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 199,000 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-----