-----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, R4og5MMuexpDf6tD3cSl2+BJLKmsjXVzCxWCCdV+m8d91qcudHN66zTTdYT5OOXX gEOrHf4Pl0Cfs/0hlLj+VA== 0000950117-02-003100.txt : 20021216 0000950117-02-003100.hdr.sgml : 20021216 20021216153519 ACCESSION NUMBER: 0000950117-02-003100 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20021216 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: 02858640 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 a33987.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. 35 ------------------- 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. 35 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 5. Past Contacts, 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 December 13, 2002, the Company invited Omnicare and Genesis Health Ventures, Inc. ("Genesis") each to submit its "best and highest offer" to acquire all of the outstanding shares of class A and class B common stock of the Company by 6:00 p.m. (E.S.T.) on December 15, 2002. In addition, the Company provided Omnicare and Genesis with Rules and Procedures for Submission of Proposals for NCS HealthCare, Inc. setting forth the rules and procedures established by the Company for the submission of proposals, the full text of which is filed as Exhibit (a)(1)(EEE) hereto and is incorporated herein by reference. Following receipt of the request for proposals from the Company, Genesis and Omnicare discussed termination of the NCS/Genesis Merger Agreement and negotiated and executed a Termination and Settlement Agreement, dated December 15, 2002 (the "Termination Agreement"). The Termination Agreement provides, among other things, that Genesis will terminate the NCS/Genesis Merger Agreement in accordance with its terms by sending written notice of such termination to the Company on December 16, 2002 (which will also result in termination of the voting agreements between Genesis and Messrs. Outcalt and Shaw). In addition, Genesis and Omnicare agreed to release the other party from any claims arising from the NCS/Genesis Merger Agreement and not to commence any action against the other party arising out of or in connection with the NCS/Genesis Merger Agreement. Omnicare also agreed that prior to the closing of a transaction with the Company, it would pay Genesis an amount in cash equal to $22 million less any termination fees paid by or on behalf of the Company to Genesis under the NCS/Genesis Merger Agreement. The full text of the Termination Agreement is filed as Exhibit (a)(5)(D) hereto and is incorporated herein by reference. On December 16, 2002, Omnicare issued a press release announcing the Termination and Settlement Agreement, the full text of which is filed as Exhibit (a)(1)(FFF) hereto and is incorporated herein by reference. Item 12. Exhibits. Item 12 is hereby amended and supplemented with the following information: Exhibit (a)(1)(EEE) Rules and Procedures for Submission of Proposals for NCS HealthCare, Inc., dated December 13, 2002. Exhibit (a)(1)(FFF) Press Release issued by Omnicare, Inc. on December 16, 2002. Exhibit (a)(5)(D) Termination and Settlement Agreement, dated December 15, 2002, between Omnicare, Inc., Genesis Health Ventures, Inc. and Geneva Sub, Inc. 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 16, 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 issued by Omnicare, Inc. on December 5, 2002.* (a)(1)(AAA) Order of the Supreme Court of the State of Delaware, issued on December 10, 2002.* (a)(1)(BBB) Press Release issued by Omnicare, Inc. on December 11, 2002.* (a)(1)(CCC) Omnicare, Inc. v. NCS HealthCare, Inc., et al., C.A. No. 19786 (Del. Ch. December 11, 2002).* (a)(1)(DDD) Press Release issued by Omnicare, Inc. on December 12, 2002.* (a)(1)(EEE) Rules and Procedures for Submission of Proposals for NCS HealthCare, Inc., dated December 13, 2002. (a)(1)(FFF) Press Release issued by Omnicare, Inc. on December 16, 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.* (a)(5)(C) Agreement and Plan of Merger executed and delivered by Omnicare, Inc. on December 12, 2002.* (a)(5)(D) Termination and Settlement Agreement, dated December 15, 2002, between Omnicare, Inc., Genesis Health Ventures, Inc. and Geneva Sub, 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-a1eee.txt EXHIBIT (A)(1)(EEE) Exhibit (a)(1)(EEE) ATTORNEY WORK PRODUCT PRIVILEGED AND CONFIDENTIAL NCS HEALTHCARE, INC. December 13, 2002 TO: Genesis Health Ventures, Inc. c/o Mark Gordon, Esq. Omnicare, Inc. c/o Morton A. Pierce, Esq. Re: Rules and Procedures for Submission of Proposals for NCS Healthcare, Inc. Gentlemen: It is the strongly held view of the NCS Board that a competitive bidding process for the Company must be conducted in a fair and orderly manner. The interests of our stockholders, employees, customers and suppliers can and will be best served by such an approach. The NCS Board is mindful that the process in which the Company is currently engaged does present certain risks, particularly if the process is prolonged, including disruption to the Company's business and overall uncertainty among the Company's constituencies as to the Company's future. In order to mitigate these risks, the NCS Board believes that the most prudent course of action is to attempt to bring this process to a prompt and orderly close. Accordingly, the NCS Board has established the rules and procedures specified below for receiving proposals to acquire the Company ("Proposals"). The procedures are designed to constitute a single and final round of bidding, and each of you should submit your best and highest offer. The purpose of this letter is to invite each of you to submit Proposals, pursuant to such rules and procedures. The NCS Board believes that agreement to such rules and procedures is critical to mitigating the risk of the process in which the Company is now engaged and, accordingly, submission of a Proposal will constitute for all purposes an agreement to be bound by such rules and procedures. The following rules and procedures will govern the submission of Proposals: 1. Proposals should be addressed and delivered via facsimile and electronic transmission to each of the following: Skadden, Arps, Slate, Meagher & Flom LLP c/o Robert B. Pincus Facsimile: 302-651-3001 Email: bpincus@skadden.com Benesch, Friedlander, Coplan & Aronoff LLP c/o Megan Mehalko Facsimile: 216-363-4588 Email: mmehalko@bfca.com Candlewood Partners LLC c/o Glenn Pollack Facsimile: 440-247-3060 Email: gpollack@candlewoodpartners.com Proposals must be received no later than Sunday, December 15, 2002 at 6:00 p.m. Eastern Standard Time, unless extended by notice. You may not make any Proposal, or modify or amend any pending Proposal, to purchase the Company, except as prescribed herein. 2. The Agreement and Plan of Merger currently in effect between the Company and Genesis or an amendment thereto, with only such changes as are clearly marked thereon is to be used by Genesis in submitting its Proposal. The form of the Agreement and Plan of Merger submitted by Omnicare to NCS, pursuant to the letter dated December 12, 2002 from Omnicare to NCS, with only such changes as are clearly marked thereon is to be used by Omnicare in submitting its Proposal. 3. Proposals must be accompanied by (i) an executed letter authorized by the bidder which provides that its Proposal will remain outstanding, unchanged and irrevocable until 5:00 p.m. Eastern Standard Time, December 18, 2002, in the case of Genesis, and 5:00 p.m. Eastern Standard Time, February 2, 2003,(1) in the case of Omnicare, (ii) an executed merger agreement, in the case of Omnicare, or an executed amended merger agreement, in the case of Genesis, in each case, capable of acceptance by NCS solely by execution of the merger agreement or the amended merger agreement, as the case may be. 4. The merger agreement and the amended merger agreement, as the case may be, may contain: - -------------------- (1) Obviously, the reason for this discrepancy is that NCS may be precluded from entering into an agreement with Omnicare prior to February 1, 2003; provided, that if Omnicare has the superior Proposal, NCS intends to move expeditiously to be in a position to enter into an agreement with Omnicare. o A "no shop" provision which in no event prohibits or restricts NCS from responding to bona fide offers or providing confidential information to any party that makes an acquisition proposal (subject to execution of a confidentiality agreement acceptable to the NCS Board); o A "force the vote" provision as permitted by Section 251(c) of the DGCL; o A "break up" fee of up to $12 million, subject to payment under reasonable circumstances; and o A "drop dead" date of no later than February 28, 2003. No other "lock-ups," voting agreements or other provisions intended to preclude or impede superior proposals may be included in any Proposal. 5. The NCS Board will carefully evaluate the terms and conditions of any and all Proposals received and determine which Proposal, in its reasonable good faith judgment, provides the best value reasonably obtainable for NCS stockholders. The NCS Board currently intends: (i) if the Genesis Proposal is determined to be superior, to enter into an amended merger agreement with Genesis and (ii) if the Omnicare Proposal is determined to be superior, (A) to attempt to negotiate a reasonable termination agreement with Genesis or (B) to seek approval of the court for appropriate relief to enter into a merger agreement with Omnicare. 6. These procedures will be interpreted by the NCS Board in its sole discretion. 7. Nothing contained herein shall be deemed to be a rejection of the December 12, 2002 offer by Omnicare to acquire all of the shares of Common Stock of NCS for $5.50 per share or provide any right of revocation thereof to Omnicare. 8. Questions may be directed to: Bob Pincus (302) 651-3090 (Office) [HOME NUMBER DELETED] bpincus@skadden.com or Megan Mehalko (216) 363-4487 (Office) [HOME NUMBER DELETED] mmehalko@bfca.com 9. The NCS Board reserves the right, insofar as necessary in the proper exercise of its fiduciary duties, to change the rules and procedures as set forth in this letter. If the NCS Board modifies these rules and procedures, it intends to promptly notify both of you. EX-99 4 ex99-a1fff.txt EXHIBIT (A)(1)(FFF) Exhibit (a)(1)(FFF) [LETTERHEAD OF OMNICARE, INC.] Omnicare news release - -------------------------------------------------------------------------------- GENESIS HEALTH VENTURES TO TERMINATE AGREEMENT WITH NCS HEALTHCARE Omnicare's Offer to Acquire NCS HealthCare for $5.50 per Share in Cash Remains Outstanding COVINGTON, Ky, December 16, 2002 - Omnicare, Inc. (NYSE: OCR), a leading provider of pharmaceutical care for the elderly, today announced that Genesis Health Ventures, Inc. (NASDAQ: GHVI) has agreed to terminate its agreement to acquire NCS HealthCare, Inc. (NCSS.OB). On December 13, 2002, NCS invited Omnicare and Genesis each to submit its "best and highest offer" to acquire all of the outstanding shares of Class A and Class B common stock of the Company by 6:00 p.m. (E.S.T.) on December 15, 2002. Following receipt of the request for proposals from NCS, Genesis and Omnicare discussed termination of the NCS/Genesis Merger Agreement and negotiated and executed a Termination and Settlement Agreement, dated December 15, 2002. The Termination Agreement provides, among other things, that Genesis will terminate the NCS/Genesis Merger Agreement in accordance with its terms by sending written notice of such termination to NCS on December 16, 2002 (which will also result in termination of the voting agreements between Genesis and Messrs. Outcalt and Shaw). In addition, Genesis and Omnicare each agreed to release the other party from any claims arising from the NCS/Genesis Merger Agreement and not to commence any action against the other party arising out of or in connection with the NCS/Genesis Merger Agreement. Omnicare also agreed that prior to the closing of a transaction with NCS, it would pay Genesis an amount in cash equal to $22 million less any termination fees paid by or on behalf of NCS to Genesis under the NCS/Genesis Merger Agreement. On December 12, 2002, Omnicare proposed to acquire NCS for $5.50 per share in cash and has executed and delivered an agreement and plan of merger to NCS relating to its proposal, which can be accepted by NCS by executing and returning a copy to Omnicare. 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 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 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. ### Contacts: Cheryl D. Hodges Joele Frank/Andy Brimmer Omnicare, Inc. Joele Frank, Wilkinson Brimmer Katcher (859) 392-3331 (212) 355-4449, ext. 121 EX-99 5 ex99-a5d.txt EXHIBIT (A)(5)(D) Exhibit (a)(5)(D) Termination and Settlement Agreement TERMINATION AND SETTLEMENT AGREEMENT, dated as of December 15, 2002 (this "Agreement"), by and among Genesis Health Ventures, Inc., a Pennsylvania corporation ("Genesis"), Geneva Sub, Inc., a Delaware corporation and a direct or indirect wholly owned subsidiary of Genesis ("Sub"), and Omnicare, Inc., a Delaware corporation ("Omnicare"). WHEREAS, Genesis, Sub and NCS HealthCare, Inc., a Delaware corporation (the "NCS") have previously entered into that certain Agreement and Plan of Merger, dated as of July 28, 2002 (the "Genesis Merger Agreement"). Capitalized terms not otherwise defined herein shall have the meaning ascribed to such terms in the Genesis Merger Agreement; WHEREAS, the Delaware Court of Chancery has entered an order preliminarily enjoining the consummation of the Merger pending further proceedings; WHEREAS, Omnicare has made an irrevocable offer to acquire NCS at a purchase price of $5.50 per share of NCS Common Stock, which transaction cannot occur so long as the Genesis Merger Agreement and related Voting Agreements are in effect; WHEREAS, NCS has previously requested, and Omnicare does now request, that Genesis and Sub consent to the termination of the Genesis Merger Agreement (which will result in the termination of the related Voting Agreements, as well), and, as a result, not seek to enforce their rights under the Genesis Merger Agreement or to pursue court proceedings through to final resolution, so that NCS will be free to accept and enter into Omnicare's offer; WHEREAS, Genesis and Sub have incurred direct and indirect expenses in connection with the Genesis Merger Agreement and related transactions far in excess of the Termination Fee provided for in the Genesis Merger Agreement. NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement, and intending to be legally bound hereby, the parties hereto agree as follows: 1. Genesis hereby agrees to terminate the Genesis Merger Agreement pursuant to Section 7.1(g)(iii) thereof on Monday, December 16, 2002 by sending notice thereof to NCS on such day (or, if necessary, pursuant to such other termination rights as may be available thereafter), and Omnicare hereby agrees to pay to Genesis, prior to the Omnicare Closing (as defined below), an amount in cash equal to $22,000,000 (the "Termination Payment"), less the amount of any Termination Fee (as defined in the Genesis Merger Agreement) actually paid by or on behalf of NCS to Genesis. 2. The term "Omnicare Closing" means the consummation of any transaction involving Omnicare or any of its affiliates, on the one hand, and NCS or any of its securities or securityholders on the other, which transaction is of any of the types specified in the definition of "Acquistion Proposal", as such term is used in the Genesis Merger Agreement. 3. The following provisions shall become effective and binding if and when, and only if and when, Genesis receives the Termination Payment as provided in paragraph 1 hereof: (a) Genesis and Sub do hereby, on behalf of themselves, their Affiliated Parties (as defined below), successors and assigns, release, remise, acquit, and forever discharge Omnicare and any of its Affiliated Parties of and from all, and all manner of, past, present, and future claims, complaints, actions, causes of action, promises, covenants, duties, damages (whether compensatory, consequential, punitive, or exemplary), and any and all suits of law, or in equity, and any liabilities of any kind of nature whatsoever arising from the Genesis Merger Agreement including but not limited to any claim for specific performance of the Genesis Merger Agreement and any claim for damages for breach of the Genesis Merger Agreement. (b) Omnicare does hereby, on behalf of itself and its Affiliated Parties, successors and assigns, release, remise, acquit, and forever discharge Genesis and Sub and their respective Affiliated Parties of and from all, and all manner of, past, present, and future claims, complaints, actions, causes of action, promises, covenants, duties, damages (whether compensatory, consequential, punitive, or exemplary), and any and all suits of law, or in equity, and any liabilities of any kind of nature whatsoever arising from the Genesis Merger Agreement including but not limited to any claim for specific performance of the Genesis Merger Agreement and any claim for damages for breach of the Genesis Merger Agreement. (c) Neither Omnicare, Genesis nor Sub shall, directly or indirectly, in its own name or through another, commence any action, litigation, suit, arbitration or other proceeding, or assert any claim or demand, against any one or more of the other parties or their respective affiliates, directors, officers, employees, representatives, attorneys and agents ("Affiliated Parties") and successors and assigns in any manner arising out of or in connection with any subject matter for which the release and discharge set forth in this paragraph 3 hereof is given; provided that nothing contained in paragraph 3 hereof shall release any person from any claim or liability under this Agreement. 4. Omnicare agrees not to seek to, or to take any action to (or that could reasonably be expected to) cause or encourage NCS or any of its Affiliated Parties or stockholders to seek to challenge any provision of this Agreement. Genesis agrees that it shall not seek to impede or challenge any agreement entered into between NCS and Omnicare with respect to any Acquisition Proposal. 5. The Termination Payment shall be made by wire transfer of immediately available funds to an account to be specified in writing by Genesis. 6. This Termination Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. 7. This Agreement may be executed in counterparts, which together shall constitute one and the same termination agreement. IN WITNESS WHEREOF, Genesis, Sub and Omnicare have signed this Agreement as of the date first written above. GENESIS HEALTH VENTURES, INC. By: /s/ Robert H. Fish ---------------------- Name: Robert H. Fish Title: Chief Executive Officer GENEVA SUB, INC. By: /s/ Robert H. Fish ---------------------- Name: Robert H. Fish Title: Chief Executive Officer OMNICARE, INC. By: /s/ Joel F. Gemunder ---------------------- Name: Joel F. Gemunder Title: President and Chief Executive Officer [Signature Page to Termination Agreement] -----END PRIVACY-ENHANCED MESSAGE-----