-----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, FLfCeZEEpOJwlzNcA2rZOzP7qf0+w6TxM0Vmj33mkzieJqrxxDC2mQJvNJv/BoEl wgSeIkmgP76wiRwzpEdjRg== 0000950117-02-002931.txt : 20021205 0000950117-02-002931.hdr.sgml : 20021205 20021205145846 ACCESSION NUMBER: 0000950117-02-002931 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 4 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 TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-47039 FILM NUMBER: 02849717 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 a33889.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. 30 ------------------- 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. 30 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)(A) and (a)(1)(B), 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 11. Additional Information. The following is hereby added to the end of Section 18 ("Legal Proceedings") of the Offer to Purchase: On December 3, 2002, the Delaware Supreme Court ordered that Omnicare's appeals from orders of the Delaware Chancery Court, which were heard earlier that day by a panel of three Supreme Court Justices, would be reheard and determined by the entire Supreme Court sitting en banc on December 4, 2002. The full text of the Delaware Supreme Court's December 3, 2002 order is filed as Exhibit (a)(1)(XX) hereto and is incorporated herein by reference. Omnicare's appeals relate to orders of the Delaware Chancery Court dismissing Omnicare's breach of fiduciary duty claims against the Company's directors for lack of standing and entering summary judgment in favor of the Company, its board of directors and Genesis Health Ventures, Inc. ("Genesis") as to Omnicare's claim that Messrs. Outcalt's and Shaw's class B common stock (ten votes per share) automatically converted to class A common stock (one vote per share) upon execution of the voting agreements with Genesis. On December 4, 2002, the Delaware Supreme Court issued an order (i) vacating its earlier order refusing the NCS stockholder-plaintiffs' application for an interlocutory appeal from the Delaware Chancery Court order denying their Motion for a Preliminary Injunction and granting the NCS stockholder-plaintiffs' application for an interlocutory appeal and (ii) finding that, because the NCS stockholder-plaintiffs' appeal and Omnicare's appeals arise from the same operative facts, they should, therefore, be consolidated and will be heard by the Court at the same time. The consolidated appeals will be heard by the Delaware Supreme Court en banc on December 10, 2002. The full text of the Delaware Supreme Court's December 4, 2002 order is filed as Exhibit (a)(1)(YY) hereto and is incorporated herein by reference. As a result of the Delaware Supreme Court's December 4, 2002 order, the NCS stockholder meeting, which was scheduled for December 5, 2002, has been postponed until December 12, 2002. On December 5, 2002, Omnicare issued a press release relating to these orders, the full text of which is filed as Exhibit (a)(1)(ZZ) hereto and is incorporated herein by reference. Item 12. Exhibits. Item 12 is hereby amended and supplemented with the following information: Exhibit (a)(1)(XX) Order of the Supreme Court of the State of Delaware, issued on December 3, 2002. Exhibit (a)(1)(YY) Order of the Supreme Court of the State of Delaware, issued on December 4, 2002. Exhibit (a)(1)(ZZ) Press Release filed by Omnicare, Inc. on December 5, 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: December 5, 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.* (a)(1)(K) First Amended Complaint filed in the Chancery Court, New Castle County, Delaware on August 12, 2002.* (a)(1)(L) Press Release issued by Omnicare, Inc. on August 20, 2002.* (a)(1)(M) First Amended Complaint filed in the United States District Court for the Northern District of Ohio on August 21, 2002.* (a)(1)(N) Press Release issued by Omnicare, Inc. on August 26, 2002.* (a)(1)(O) Press Release issued by Omnicare, Inc. on September 6, 2002.* (a)(1)(P) Selected material from a presentation of Omnicare, Inc. at the Bear Stearns 15th Annual Healthcare Conference on September 17, 2002 at The Waldorf Astoria, New York, New York.* (a)(1)(Q) Press Release issued by Omnicare, Inc. on September 20, 2002.* (a)(1)(R) Motion for Summary Judgment as to Count I of the First Amended Complaint filed in the Chancery Court, New Castle County, Delaware on September 30, 2002.* (a)(1)(S) Motion to Dismiss the First Amended Complaint filed in the United States District Court for the Northern District of Ohio on September 13, 2002.* (a)(1)(T) Opposition to Omnicare's Motion to Dismiss and Motion for Preliminary Injunction filed in the United States District Court for the Northern District of Ohio on September 30, 2002.* (a)(1)(U) Press Release issued by Omnicare, Inc. on October 4, 2002.* (a)(1)(V) Defendant's Motion to Dismiss the Second Amended Complaint filed in the Chancery Court, New Castle County, Delaware on October 3, 2002.* (a)(1)(W) Omnicare's Reply Memorandum of Law in Further Support of the Motion to Dismiss the First Amended Complaint filed in the United States District Court for the Northern District of Ohio on October 15, 2002.* (a)(1)(X) Second Amended Complaint filed in the Chancery Court, New Castle County, Delaware on October 16, 2002.* (a)(1)(Y) Plaintiff's Memorandum of Law in Opposition to the NCS Defendants' Motion to Dismiss Omnicare's Second Amended Complaint filed in the Chancery Court, New Castle County, Delaware on October 17, 2002.* (a)(1)(Z) Omnicare's Memorandum of Law in Opposition to Plaintiff's Motion for Preliminary Injunction filed in the United States District Court for the Northern District of Ohio on October 17, 2002.* (a)(1)(AA) The NCS Defendants' Memorandum of Law in Opposition to Omnicare's and the Class Plaintiffs' Motion for Summary Judgment filed in the Chancery Court, New Castle County, Delaware on October 17, 2002.* (a)(1)(BB) Defendant Jon H. Outcalt's Brief in Opposition to Omnicare's Motion for Summary Judgment on Count I of the First Amended Complaint filed in the Chancery Court, New Castle County, Delaware on October 17, 2002.* (a)(1)(CC) Defendant Kevin B. Shaw's Memorandum of Law in Opposition to Omnicare's Motion for Summary Judgment on Count I of the Second Amended Complaint filed in the Chancery Court, New Castle County, Delaware on October 17, 2002.* (a)(1)(DD) Brief of Defendants Genesis Health Ventures, Inc. and Geneva Sub, Inc. in Opposition to Omnicare's and the Class Plaintiffs' Motions for Summary Judgment on Count I of their Complaints filed in the Chancery Court, New Castle County, Delaware on October 17, 2002.* (a)(1)(EE) Press Release issued by Omnicare, Inc. on October 22, 2002.* (a)(1)(FF) Reply Memorandum of Law in Further Support of Omnicare's Motion for Summary Judgment as to Count I of the Second Amended Complaint filed in the Chancery Court, New Castle County, Delaware on October 22, 2002.* (a)(1)(GG) The NCS Defendants' Reply Memorandum of Law in Support of Their Motion to Dismiss Omnicare's Second Amended Complaint filed in the Chancery Court, New Castle County, Delaware on October 22, 2002.* (a)(1)(HH) Reply Brief of Defendants Genesis Health Ventures, Inc. and Geneva Sub, Inc. in Support of Their Motion to Dismiss the Second Amended Complaint filed in the Chancery Court, New Castle County, Delaware on October 22, 2002.* (a)(1)(II) Omnicare, Inc. v. NCS HealthCare, Inc., et al., C.A. No. 19800 (Del. Ch. October 25, 2002).* (a)(1)(JJ) Press Release issued by Omnicare, Inc. on October 28, 2002.* (a)(1)(KK) Omnicare, Inc. v. NCS HealthCare, Inc., et al., C.A. No. 19800 (Del. Ch. October 29, 2002).* (a)(1)(LL) Press Release issued by Omnicare, Inc. on October 30, 2002.* (a)(1)(MM) Excerpts from the Transcript of Omnicare's Third Quarter 2002 Conference Call, dated October 31, 2002.* (a)(1)(NN) Press Release issued by Omnicare, Inc. on November 5, 2002.* (a)(1)(OO) Selected material from a presentation of Omnicare, Inc. at the CIBC World Markets 13th Annual Health Care Conference on November 5, 2002 at The Plaza Hotel, New York, New York.* (a)(1)(PP) Press Release issued by Omnicare, Inc. on November 19, 2002.* (a)(1)(QQ) Brief filed by Omnicare, Inc. in the Supreme Court of the State of Delaware on November 14, 2002.* (a)(1)(RR) In Re NCS HealthCare, Inc., Shareholders Litigation, Consolidated C.A. No. 19786 (Del. Ch. November 22, 2002).* (a)(1)(SS) Press Release issued by Omnicare, Inc. on November 25, 2002.* (a)(1)(TT) Answering Brief filed by Appellees NCS HealthCare, Inc., Boake A. Sells and Richard L. Osborne in the Supreme Court of the State of Delaware on November 22, 2002.* (a)(1)(UU) Answering Brief filed by Appellees Jon H. Outcalt and Kevin B. Shaw in the Supreme Court of the State of Delaware on November 22, 2002.* (a)(1)(VV) Answering Brief filed by Appellees Genesis Health Ventures, Inc. and Geneva Sub, Inc. in the Supreme Court of the State of Delaware on November 22, 2002.* (a)(1)(WW) Press Release issued by Omnicare, Inc. on December 4, 2002.* (a)(1)(XX) Order of the Supreme Court of the State of Delaware, issued on December 3, 2002. (a)(1)(YY) Order of the Supreme Court of the State of Delaware, issued on December 4, 2002. (a)(1)(ZZ) Press Release filed by Omnicare, Inc. on December 5, 2002. (a)(5)(A) Form of Agreement and Plan of Merger proposed by Omnicare, Inc.* (a)(5)(B) Agreement and Plan of Merger executed by Omnicare, Inc.* (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-a1xx.txt EXHIBIT (A)(1)(XX) Exhibit (a)(1)(XX) IN THE SUPREME COURT OF THE STATE OF DELAWARE OMNICARE, INC., ) ) Plaintiff Below, ) Appellant, ) v. ) No. 605, 2002 ) 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. ) ORDER This 3rd day of December 2002, IT IS ORDERED that the above-captioned case, having been submitted by oral argument to a panel of three justices consisting of Justice Holland, Justice Berger and Justice Steele, on December 3, 2002, is now to be scheduled for rehearing and determination by the Court en banc, without further briefing, on Wednesday, December 4, 2002 at 12:30 p.m. in Wilmington. BY THE COURT: /s/ Randy Holland _____________________ Justice -1- EX-99 4 ex99-a1yy.txt EXHIBIT (A)(1)(YY) Exhibit (a)(1)(YY) IN THE SUPREME COURT OF THE STATE OF DELAWARE OMNICARE, 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 ASHOK K. MEHAN IRA, ) ) Plaintiffs Below- ) Appellants. ) v. ) ) JON H. OUTCALT, KEVIN E. ) SHAW, BOAKE A. SELLS, ) RICHARD L. 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 11:00 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 5 ex99-a1zz.txt EXHIBIT (A)(1)(ZZ) Exhibit (a)(1)(ZZ) [LETTERHEAD OF OMNICARE] Omnicare news release - ------------------------------------------------------------------------------- DELAWARE SUPREME COURT ACCEPTS NCS STOCKHOLDER-PLAINTIFFS' INTERLOCUTORY APPEAL OMNICARE AND NCS STOCKHOLDER-PLAINTIFFS' APPEALS CONSOLIDATED AND TO BE HEARD BY THE ENTIRE DELAWARE SUPREME COURT NCS Stockholder Meeting Postponed as a Result of the Supreme Court's Decision COVINGTON, Ky, December 5, 2002 - Omnicare, Inc. (NYSE: OCR), a leading provider of pharmaceutical care for the elderly, today announced that the Delaware Supreme Court issued an order on December 4, 2002 vacating its earlier order refusing the NCS stockholder-plaintiffs' application for an interlocutory appeal from the Chancery Court order denying their motion for a preliminary injunction. The Court has now agreed to hear the plaintiffs' interlocutory appeal. The NCS stockholder-plaintiffs' claims against NCS HealthCare, Inc. (NCSS.OB), its board of directors and Genesis Health Ventures, Inc. (NASDAQ: GHVI) arise out of the proposed acquisition of NCS by Genesis. Omnicare also announced that the Delaware Supreme Court ordered, on December 3, 2002, that Omnicare's appeal, which was previously heard by a panel of three Supreme Court Justices, be heard and determined by the entire Supreme Court sitting en banc. Omnicare has appealed the Chancery Court's orders dismissing Omnicare's breach of fiduciary duty claims against the NCS directors for lack of standing and entering summary judgment in favor of the defendants as to Omnicare's claim that Messrs. Outcalt's and Shaw's Class B common stock (ten votes per share) automatically converted to Class A common stock (one vote per share) upon execution of the voting agreements with Genesis. In its December 4th order, the Delaware Supreme Court stated that the NCS stockholder-plaintiffs' appeal and Omnicare's appeals arise from the same operative facts and, therefore, should be consolidated and heard by the Court at the same time. These appeals will be heard by the entire Delaware Supreme Court on December 10, 2002. As a result of the Delaware Supreme Court's decision, the NCS stockholder meeting will not be held on Thursday, December 5, 2002 and has been postponed until December 12, 2002. 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. -more- -2- About the Company Omnicare, based in Covington, Kentucky, is a leading provider of pharmaceutical care for the elderly. Omnicare serves approximately 746,000 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. 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 expectations regarding the outcome of the litigation in the Delaware courts, 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 and further reductions in governmental reimbursement to customers and to Omnicare as a result of pressure on federal and state budgets due to the continuing economic downturn and other factors; 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; increases or decreases in reimbursement; 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. ### -more- -3- 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-----