-----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, BNWoSEaDxB/IbYtUtPaglcb3UsOq2qyXVB9u/xi0FaBvaRxPru+e55imLkOQZpaV e/EvO3Z7ZR5pls57cG6xYg== 0000893220-03-000009.txt : 20030103 0000893220-03-000009.hdr.sgml : 20030103 20030103155118 ACCESSION NUMBER: 0000893220-03-000009 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20030103 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: 03503155 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 w70996sc14d9za.txt AMENDMENT NO.18 TO SC 14D9/A FOR NCS HEALTHCARE SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ------------------ SCHEDULE 14D-9 (AMENDMENT NO. 18) 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. 18 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, December 11, 2002, December 12, 2002, December 16, 2002, December 18, 2002 and December 23, 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 $5.50 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 17 thereto remains unchanged. ITEM 8. ADDITIONAL INFORMATION (a) Legal Matters Item 8(a) of the Schedule 14D-9 is hereby amended to add the following at the end thereof: On December 27, 2002, the stockholder-plaintiffs filed a complaint, along with a motion for a temporary restraining order, in the Chancery Court seeking to (i) enjoin Omnicare and the Offeror from distributing $13,500,000 of the amount otherwise payable to stockholders of the Company in the Offer and (ii) require Omnicare and the Offeror to deposit this $13,500,000 in escrow until the Chancery Court determines the rights of the stockholder-plaintiffs and their counsel to an allowance of fees and expenses in the Consolidated Shareholders Litigation. On January 2, 2003, the Chancery Court issued a temporary restraining order requiring Omnicare and the Offeror to deposit this $13,500,000 in escrow pending further order of the Chancery Court within three business days following the closing of the Offer. The foregoing paragraph includes a summary of the complaint, the motion and the temporary restraining order, and is qualified in its entirety by the full text of the complaint, the motion and the temporary restraining order, copies of which are attached as Exhibit 99.37, 99.38 and 9.39 hereto, respectively, and are incorporated herein by reference. ITEM 9. EXHIBITS EXHIBIT NO. - ----------- Exhibit 99.37 Complaint filed by the stockholder-plaintiffs in the Court of Chancery of the State of Delaware on December 27, 2002. (Incorporated herein by reference to Exhibit (a)(1)(OOO) to Amendment No. 38 to Omnicare's Tender Offer Statement on Schedule TO/A, filed on December 30, 2002.) 2 Exhibit 99.38 Motion for Temporary Restraining Order filed by the stockholder-plaintiffs in the Court of Chancery of the State of Delaware on December 27, 2002. (Incorporated herein by reference to Exhibit (a)(1)(PPP) to Amendment No. 38 to Omnicare's Tender Offer Statement on Schedule TO/A, filed on December 30, 2002.) Exhibit 99.39 Temporary Restraining Order issued by the Court of Chancery of the State of Delaware on January 2, 2002.* - -------------------- * Filed herewith. 3 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: January 3, 2003 EX-99.39 3 w70996exv99w39.txt TEMPORARY RESTRAINING ORDER Exhibit 99.39 IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY DOLPHIN LIMITED PARTNERSHIP I, L.P., : RAMESH MEHAN, RENEE MEHAN, RENEE MEHAN IRA, : SAROJ MEHAN, MANEESCH MEHAN, RAHUL MEHAN, : JOEL MEHAN, LAJIA MEHAN, DARSHAN MEHAN IRA, : Civil Action DARSHAN MEHAN (ROLLOVER IRA), ARSH N. MEHAN,: No. 20101 ARSH N. MEHAN (ROTH IRA), ASHOK K. MEHAN, : ----- ASHOK K. MEHAN IRA, ROBERT M. MILES and : GUILLERMO MARTI, : : : Plaintiffs, : : V. : : NCS ACQUISITION CORP. AND OMNICARE, INC., : : Defendants. : : O R D E R --------- Plaintiffs having moved the Court for a Temporary Restraining Order, for the reasons stated on the record on January 2, 2003. --------------- It is this 2nd day of January, 2003, ORDERED as follows: 1. Defendants NCS Acquisition Corp. ("NCS Acquisition") and Omnicare, Inc. ("Omnicare") and their directors, officers, agents, servants, employees, attorneys, parents and subsidiaries are hereby temporarily restrained and enjoined from paying to the shareholders of NCS Healthcare, Inc. ("NCS") the sum of $13,500,000.00 (The "escrow fund") in connection with the closing of -------------- defendants' pending tender offer for the stock of NCS and related merger, pursuant to the Agreement and Plan of Merger by and among Omnicare, NCS Acquisition Corp. and NCS dated December 17, 2002. 2. The escrow fund shall be withheld by proration among all NCS shares NCS Acquisition and Omnicare acquire in the tender offer and merger, i.e., the same amount shall be withheld from payment for each NCS share acquired pursuant to the tender offer and merger. 3. NCS Acquisition and Omnicare shall deposit the escrow fund in an interest bearing escrow account pending further Order of this Court, within 3 business days following the closing of the tender offer. 4. This Temporary Restraining Order shall be effective only upon the posting of a bond without surety by plaintiffs in the sum of $10,000 for such ------- costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. /s/ Stephen P. Lamb ------------------------------------ Vice Chancellor -----END PRIVACY-ENHANCED MESSAGE-----