-----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, IyCrN2FXHAf+HWUmHAQVOzYPKdnB83dM1qOuFgr7scs92H0k8VMa9N9/ppgaq5tJ C3ehwYPzYgsGvWG6PLyesQ== 0000950117-02-001795.txt : 20020809 0000950117-02-001795.hdr.sgml : 20020809 20020808190749 ACCESSION NUMBER: 0000950117-02-001795 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20020809 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 TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-47039 FILM NUMBER: 02723596 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: OMNICARE INC CENTRAL INDEX KEY: 0000353230 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DRUG STORES AND PROPRIETARY STORES [5912] IRS NUMBER: 311001351 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 100 E RIVERCENTER BLVD STREET 2: STE 1600 CITY: COVINGTON STATE: KY ZIP: 41101 BUSINESS PHONE: 6063923300 MAIL ADDRESS: STREET 1: 100 E RIVERCENTER BLVD STREET 2: STE 1600 CITY: COVINGTON STATE: KY ZIP: 41101 SC TO-T/A 1 a33139.txt OMNICARE INC. ________________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------- SCHEDULE TO/A (RULE 14d-100) TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 AMENDMENT NO. 1 ------------------- NCS HEALTHCARE, INC. (Name of Subject Company (Issuer)) OMNICARE, INC. NCS ACQUISITION CORP. (Names of Filing Persons (Offerors)) CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE (Title of Class of Securities) 62887410 (CUSIP Number of Class A Common Stock) AND CLASS B COMMON STOCK, PAR VALUE $0.01 PER SHARE (Title of Class of Securities) NOT APPLICABLE (CUSIP Number of Class B Common Stock) PETER LATERZA, ESQ. VICE PRESIDENT AND GENERAL COUNSEL OMNICARE, INC. 100 EAST RIVERCENTER BOULEVARD COVINGTON, KENTUCKY 41011 TELEPHONE: (859) 392-3300 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons) COPY TO: MORTON A. PIERCE, ESQ. DEWEY BALLANTINE LLP 1301 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10019 TELEPHONE: (212) 259-8000 ------------------- CALCULATION OF FILING FEE Transaction Valuation* Amount of Filing Fee $91,816,869 $18,363.37
* Estimated for purposes of calculating the amount of the filing fee only. This amount assumes the purchase of (i) 18,460,599 shares of the class A common stock, par value $0.01, of NCS HealthCare, Inc. (the 'Company'), representing all of the outstanding shares of such class as of July 28, 2002 (less 1,000 shares of such class owned by Omnicare, Inc.), (ii) 5,255,210 shares of the class B common stock, par value $0.01, of the Company, representing all of the outstanding shares of such class as of July 28, 2002, (iii) 2,422,724 shares reserved for issuance upon the exercise of outstanding options to purchase class A common stock and (iv) 94,858 shares reserved for issuance upon the exercise of outstanding options to purchase class B common stock. The number of outstanding shares and shares reserved for issuance upon the exercise of options is contained in the Current Report on Form 8-K filed by the Company on July 30, 2002. [X] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $18,363.37 Filing party: Omnicare, Inc. Form or Registration No.: SC TO Date Filed: August 8, 2002 [ ] Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: [x] third-party tender offer subject to Rule 14d-1 [ ] issuer tender offer subject to Rule 13e-4 [ ] going private transaction subject to Rule 13e-3 [ ] amendment to Schedule 13D under Rule 13d-2 Check the following box if the filing is a final amendment reporting the results of the tender offer [ ] ________________________________________________________________________________ This Amendment No. 1 amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission (the "Commission") on August 8, 2002 (the "Schedule TO") by Omnicare, Inc., a Delaware corporation ("Omnicare"), and NCS Acquisition Corp., a Delaware corporation ("Purchaser") and a wholly-owned subsidiary of Omnicare. The Schedule TO relates to a tender offer by Purchaser to purchase all of the outstanding shares of class A common stock, par value $0.01 per share, and class B common stock, par value $0.01 per share, of NCS HealthCare, Inc. (the "Company") for a purchase price of $3.50 per share, net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated August 8, 2002 (the "Offer to Purchase"), and in the related Letter of Transmittal (the "Letter of Transmittal" which, together with the Offer to Purchase, as hereby or hereafter amended or supplemented from time to time, constitute the "Offer"). Copies of the Offer to Purchase and the related Letter of Transmittal are filed with the Schedule TO as Exhibits (a)(1) and (a)(2), respectively. Capitalized terms used and not defined herein shall have the meanings assigned such terms in the Offer to Purchase and the Schedule TO. ITEM 5. Past Contracts, Transactions, Negotiations and Agreements. Section 11 ("Background of the Offer") of the Offer to Purchase is hereby amended by adding the following to the end of such Section: On August 8, 2002, Omnicare sent the following letter to the Company and made its contents public: [LETTERHEAD OF OMNICARE, INC.] August 8, 2002 BY FACSIMILE AND OVERNIGHT COURIER Board of Directors NCS HealthCare, Inc. 3201 Enterprise Parkway Suite 220 Beachwood, Ohio 44122 Gentlemen: As you are aware, Omnicare, Inc., through a wholly-owned subsidiary, today commenced a tender offer to purchase all of the outstanding shares of Class A Common Stock and Class B Common Stock of NCS HealthCare, Inc. for $3.50 per share, net to the sellers in cash, subject to the terms and conditions contained in the Offer to Purchase, dated August 8, 2002, and related Letter of Transmittal. As we have stated repeatedly, our offer is compelling and represents a significant premium for NCS stockholders (particularly when compared with the NCS/Genesis Health Ventures, Inc. transaction). Given NCS's refusal to respond to our proposal, we had no alternative but to take our offer directly to our fellow NCS stockholders. We are disappointed with your refusal even to discuss our proposal and your apparent disregard of your fiduciary duties to NCS stockholders. We remain, however, optimistic that the NCS Board of Directors will realize that our proposal provides NCS stockholders with the greatest value and, in accordance with your fiduciary obligations, will take all necessary action to afford NCS stockholders the opportunity to consider our proposal and realize this significant value. As expressed in our previous letters to the NCS Board of Directors, we would prefer to work together with NCS to complete a transaction that provides the greatest value to NCS and its stockholders, as well as NCS bondholders and other creditors. As we have already stated, we are willing to discuss all aspects of our offer, including structure, price and type of consideration. We also are willing to execute a merger agreement substantially identical to the NCS/Genesis Merger Agreement. We would, however, be willing to remove provisions in the agreement relating to the "break-up" fee and voting agreements (as well as other terms that we believe violate Delaware law), which may operate as a deterrent to a third party willing to provide greater value to NCS's equity and debt holders. Also, NCS bondholders and other creditors would be treated the same as they would be treated in the proposed NCS/Genesis transaction. In essence, we are offering a significant premium to the Genesis transaction and are willing to agree to the merger agreement you have already negotiated with Genesis without the provisions which preclude the acceptance of superior third-party proposals. We believe that we could consummate a negotiated transaction very quickly. Most of the conditions to our tender offer would be satisfied if we are able to negotiate a transaction with NCS, other than those customary conditions that already are included in the NCS/Genesis Merger Agreement. Although we need to complete confirmatory due diligence, we are confident that our diligence review can be completed in a matter of days if we are provided with reasonable access to certain customary non-public information regarding NCS, which we expect was made available to Genesis. Finally, our proposal clearly represents a "Superior Proposal," as defined in Section 5.3(c)(vi) of the NCS/Genesis Merger Agreement. In fact, our offer represents more than twice the value of the consideration being offered to stockholders in the proposed NCS/Genesis transaction. In addition, our proposal is not subject to any financing condition and can be consummated at least as quickly as the proposed NCS/Genesis transaction. Given that our proposal constitutes a "Superior Proposal," we would expect, in accordance with the discharge of your fiduciary duties and as permitted by the terms of the NCS/Genesis Merger Agreement, to begin discussing the terms of our proposal with NCS and to begin our confirmatory investigation of NCS's non-public information as soon as possible. We look forward to your prompt response. Sincerely, /s/ Joel F. Gemunder President and Chief Executive Officer ITEM 11. Additional Information The following is hereby added to the end of Section 18 ("Legal Proceedings") of the Offer to Purchase: On August 7, 2002, Dolphin Limited Partnership, LLP, filed a class action complaint against the Company and the Company's Board of Directors in the Delaware Court of Chancery seeking, among other things, an order: (1) declaring the action to be a class action and certifying plaintiff as the class representative and its counsel as class counsel; (2) enjoining, preliminarily and permanently, the proposed merger between NCS and Genesis; (3) directing defendants to condition the Genesis merger on the approving vote of the Class A stockholders voting as a separate class; (4) in the event that the transaction is consummated prior to the entry of the Court's final judgment, rescinding it or awarding plaintiff and the Class rescissory damages; (5) directing that defendants account to plaintiff and the other members of the Class for all damages caused by them and account for all profits and any special benefits obtained as a result of their breaches of their fiduciary duties; and (6) awarding plaintiff the costs and disbursements of this action, including a reasonable allowance for fees and expenses of plaintiff's attorneys and experts. ITEM 12. Exhibits Item 12 is hereby amended and supplemented with the following information: Exhibit (a)(1)(J) Press Release issued by Omnicare on August 8, 2002. 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. Dated: August 9, 2002 OMNICARE, INC. By: /s/ DAVID W. FROESEL, JR. ------------------------------- Name: David W. Froesel, Jr. Title: Senior Vice President and Chief Financial Officer NCS ACQUISITION CORP. By: /s/ DAVID W. FROESEL, JR. ------------------------------ Name: David W. Froesel, Jr. Title: Vice President and Chief Financial Officer EXHIBIT INDEX (a)(1)(A) Offer to Purchase dated August 8, 2002.* (a)(1)(B) Letter of Transmittal.* (a)(1)(C) Notice of Guaranteed Delivery.* (a)(1)(D) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* (a)(1)(E) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* (a)(1)(F) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.* (a)(1)(G) Summary Advertisement, published August 8, 2002.* (a)(1)(H) Press Release issued by Omnicare, Inc. on August 8, 2002.* (a)(1)(I) Complaint filed in the Chancery Court, New Castle County, Delaware on August 1, 2002.* (a)(1)(J) Press Release issued by Omnicare, Inc. on August 8, 2002. (b)(1) Three-year, $495.0 million Credit Agreement, dated as of March 20, 2001, among Omnicare, Inc., as the Borrower, the Guarantors named therein and the lenders named therein, as the Lenders, Lehman Commercial Paper Inc., as a Syndication Agent, Sun Trust Bank, as a Documentation Agent, Deutsche Banc Alex. Brown, as a Documentation Agent, and Bank One, NA, with its main office in Chicago, Illinois, as the Administrative Agent. (Incorporated by reference to Exhibit 99.3 of Omnicare's Current Report on Form 8-K filed with the Securities and Exchange Commission on March 23, 2001). (c) None. (d)(1) Confidentiality Agreement, dated August 29, 2001, between Omnicare, Inc. and NCS HealthCare, Inc.* (e) None. (f) None. (g) None. (h) None.
- --------------------- * Previously filed. EX-99 3 ex99-a1j.txt EXHIBIT (A)(1)(J) Omnicare, Inc. o 100 East RiverCenter Boulevard o Suite 1600 o Covington, Kentucky 41011 o 859/392-3300 o 859/392-3360 Fax Omnicare news release - -------------------------------------------------------------------------------- [OMNICARE LOGO] Omnicare Files Notification Under the Hart-Scott-Rodino Act COVINGTON, Ky., August 8, 2002 - Omnicare, Inc. (NYSE: OCR), a leading provider of pharmaceutical care for the elderly, today announced that it has filed a notification under the Hart-Scott-Rodino Act with the Federal Trade Commission and the Department of Justice which would permit Omnicare to acquire all of the outstanding shares of Class A and Class B common stock of NCS HealthCare, Inc. (NCSS.OB). On August 8, Omnicare commenced a cash tender offer to purchase all of the outstanding shares of Class A and Class B common stock of NCS for $3.50 per share. The offer price represents nearly five times the value of NCS's closing stock price of $0.74 on July 26, 2002, the last trading day before Omnicare announced its acquisition proposal and before NCS announced its proposed transaction with Genesis Health Ventures, Inc. (NASDAQ: GHVI). Following completion of the tender offer, Omnicare intends to consummate a second-step merger in which all remaining NCS stockholders will receive the same cash price paid in the tender offer. Dewey Ballantine LLP is acting as legal counsel to Omnicare and Merrill Lynch is acting as financial advisor. Innisfree M&A Incorporated is acting as Information Agent. About the Company Omnicare, based in Covington, Kentucky, is a leading provider of pharmaceutical care for the elderly. Omnicare serves approximately 738,000 residents in long-term care facilities in 45 states, making it the nation's largest provider of professional pharmacy, related consulting and data management services for skilled nursing, assisted living and other institutional healthcare providers. Omnicare also provides clinical research services for the pharmaceutical and biotechnology industries in 28 countries worldwide. For more information, visit the company's Web site at http://www.omnicare.com. -more- -2- This document is neither an offer to purchase nor a solicitation of an offer to sell securities. The tender offer is being made only through an offer to purchase and related letter of transmittal. Investors and security holders are strongly advised to read the tender offer statement of Omnicare because it contains important information. The tender offer statement has been filed by Omnicare with the Securities and Exchange Commission (SEC). Investors and security holders may obtain a free copy of these statements (when available) and other relevant documents on the SEC's Web site at: http://www.sec.gov. The tender offer statement and related materials may also be obtained for free by directing such requests to Omnicare at (859) 392-3331. Statements in this press release concerning Omnicare's intention to consummate a merger involving NCS; together with other statements that are not historical, are forward-looking statements that are estimates reflecting the best judgment of Omnicare based on currently available information. Such forward-looking statements involve actual known and unknown risks, uncertainties, contingencies and other factors that could cause actual results, performance or achievements to differ materially from those stated. Such risks, uncertainties, contingencies and other factors, many of which are beyond the control of Omnicare, include overall economic, financial and business conditions; trends for the continued growth of the businesses of Omnicare; the ability to implement productivity, consolidation and cost reduction efforts and to realize anticipated benefits; the impact and pace of pharmaceutical price increases; delays in reimbursement by the government and other payors to customers and Omnicare; the overall financial condition of Omnicare's customers; Omnicare's ability to assess and react to the financial condition of its customers; the impact of seasonality on the business of Omnicare; the ability of vendors to continue to provide products and services to Omnicare; the continued successful integration of Omnicare's clinical research business and acquired companies, including NCS, and the ability to realize anticipated economies of scale and cost synergies; pricing and other competitive factors in the industry; the effect of new government regulations, executive orders and/or legislative initiatives, including those relating to reimbursement and drug pricing policies and changes in the interpretation and application of such policies; government budgetary pressures and shifting priorities; efforts by payors to control costs; the outcome of litigation; the failure of Omnicare to obtain or maintain required regulatory approvals or licenses; loss or delay of contracts pertaining to Omnicare's contract research organization business for regulatory or other reasons; the ability of clinical research projects to produce revenues in future periods; the ability to attract and retain needed management; the impact and pace of technological advances; the ability to obtain or maintain rights to data, technology and other intellectual property; the impact of consolidation in the pharmaceutical and long-term care industries; volatility in the market for Omnicare's stock, the stock of Genesis Health Ventures, the stock of NCS and in the financial markets generally; access to capital and financing; the demand for Omnicare's products and services; variations in costs or expenses; the continued availability of suitable acquisition candidates; changes in tax law and regulation; changes in accounting rules and standards; and other risks and uncertainties described in Omnicare's reports and filings with the Securities and Exchange Commission. ### Contacts: Cheryl D. Hodges Joele Frank / Andy Brimmer Omnicare, Inc. Joele Frank, Wilkinson Brimmer Katcher (859) 392-3331 (212) 355-4449, ext. 121 -----END PRIVACY-ENHANCED MESSAGE-----