-----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, KxJGqY2XOIQ5b50hQ9H8GyF3EwceMfho0ZxMGQe/0XcaowI9rvv0TCzcoz6DQFiX VZIPYTkE1Sg40BmG//uINg== 0000950117-03-000023.txt : 20030103 0000950117-03-000023.hdr.sgml : 20030103 20030103154454 ACCESSION NUMBER: 0000950117-03-000023 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 4 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 TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-47039 FILM NUMBER: 03503113 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 a34099.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. 41 ------------------- 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) CHERYL D. HODGES SENIOR VICE PRESIDENT AND SECRETARY 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 $144,283,651 $13,274.10
* Estimated for purposes of calculating the amount of the filing fee only. This amount assumes the purchase of (i) 18,523,502 shares of the class A common stock, par value $0.01, of NCS Healthcare, Inc., a Delaware corporation (the 'Company'), representing all of the issued and outstanding shares of such class as of July 28, 2002 (less 1,000 shares of such class owned by Omnicare, Inc.), (ii) 5,193,307 shares of the class B common stock, par value $0.01, of the Company, representing all of the issued and 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. [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. 41 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 issued and 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., a Delaware corporation (the "Company"), at a price of $5.50 per share, net to the seller in cash, without interest and less required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated August 8, 2002 (the "Offer to Purchase"), as amended and supplemented by the Supplement to the Offer to Purchase, dated December 23, 2002 (the "Supplement"), and in the related revised Letter of Transmittal (the "Letter of Transmittal" which, together with the Offer to Purchase and the Supplement, as hereby or hereafter amended or supplemented from time to time, constitute the "Offer"). Copies of the Offer to Purchase, the Supplement and the related revised Letter of Transmittal are attached as Exhibits (a)(1)(A), (a)(1)(HHH) and (a)(1)(III), respectively, to the Schedule TO. Capitalized terms used and not defined herein shall have the meanings assigned such terms in the Offer to Purchase, the Supplement and the Schedule TO. Item 11. Additional Information. The discussion set forth under Section 18 ("Legal Proceedings") of the Offer to Purchase and Section 11 ("Legal Proceedings") of the Supplement is hereby amended and supplemented as follows: On January 2, 2003, the Company stockholder-plaintiffs submitted a letter to the Chancery Court in response to the NCS Defendants' Motion to Intervene as Defendants in the action filed by the Company stockholder-plaintiffs on December 27, 2002 with the Chancery Court. In their response, the stockholder- plaintiffs argue, among other things, that a temporary restraining order is necessary and that the amount of the escrow being requested is reasonable under the circumstances. The full text of the letter is filed as Exhibit (a)(1)(UUU) hereto and is incorporated herein by reference. Later in the day on January 2, 2003, the Court of Chancery of the State of Delaware (the "Chancery Court") issued an order (i) temporarily restraining and enjoining Omnicare and Purchaser from paying the sum of $13,500,000 (the "Escrow Fund") of the amount payable to stockholders of the Company in the Offer and the related merger, (ii) providing that the Escrow Fund shall be withheld by proration among all shares of the Company's common stock that Omnicare and Purchaser acquire in the Offer and merger and (iii) requiring that Omnicare and Purchaser deposit the Escrow Fund in an interest bearing escrow account pending further order of the Chancery Court within three business days following the closing of the Offer. The full text of the order is filed as Exhibit (a)(1)(VVV) hereto and is incorporated herein by reference. On January 3, 2003, Omnicare issued a press release with respect to the Chancery Court's order, the full text of which is filed as Exhibit (a)(1)(WWW) hereto and is incorporated herein by reference. Item 12. Exhibits. Item 12 is hereby amended and supplemented with the following information: Exhibit (a)(1)(UUU) The Stockholder-Plaintiffs' Letter to the Court of Chancery of the State of Delaware, dated January 2, 2003. Exhibit (a)(1)(VVV) Order of the Court of Chancery of the State of Delaware, issued on January 2, 2003. Exhibit (a)(1)(WWW) Press Release issued by Omnicare, Inc. on January 3, 2003. 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: January 3, 2003 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)(1)(GGG) Press Release issued by Omnicare, Inc. on December 18, 2002.* (a)(1)(HHH) Supplement to the Offer to Purchase dated December 23, 2002.* (a)(1)(III) Revised Letter of Transmittal.* (a)(1)(JJJ) Revised Notice of Guaranteed Delivery.* (a)(1)(KKK) Revised Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* (a)(1)(LLL) Revised Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.* (a)(1)(MMM) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.* (a)(1)(NNN) Press Release issued by Omnicare, Inc. on December 23, 2002.* (a)(1)(OOO) Complaint filed by the stockholder-plaintiffs in the Court of Chancery of the State of Delaware on December 27, 2002.* (a)(1)(PPP) Motion for Temporary Restraining Order, together with (i) Plaintiffs' Memorandum of Law in Support of Motion for Temporary Restraining Order and (ii) the Affidavit of Joseph A. Rosenthal in Support of Application for a Temporary Restraining Order, filed by the stockholder-plaintiffs in the Court of Chancery of the State of Delaware on December 27, 2002.* (a)(1)(QQQ) The NCS Defendants' Motion to Intervene filed in the Court of Chancery of the State of Delaware on December 30, 2002.* (a)(1)(RRR) The NCS Defendants' Answer in Intervention filed in the Court of Chancery of the State of Delaware on December 30, 2002.* (a)(1)(SSS) The NCS Defendants' Letter to the Court of Chancery of the State of Delaware, dated December 30, 2002.* (a)(1)(TTT) Omnicare's Response to the Court of Chancery of the State of Delaware, dated January 2, 2003.* (a)(1)(UUU) The Stockholder-Plaintiffs' Letter to the Court of Chancery of the State of Delaware, dated January 2, 2003. (a)(1)(VVV) Order of the Court of Chancery of the State of Delaware, issued on January 2, 2003. (a)(1)(WWW) Press Release issued by Omnicare, Inc. on January 3, 2003. (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.* (d)(2) Agreement and Plan of Merger, dated December 17, 2002, between Omnicare, Inc., NCS Acquisition Corp. and NCS HealthCare, Inc.* (e) None. (f) None. (g) None. (h) None.
- --------- * Previously filed. EX-99 3 exa1-uuu.txt EXHIBIT (A)(1)(UUU) Exhibit (a)(1)(UUU) [LETTERHEAD OF ROSENTHAL, MONHAIT, GROSS & GODDESS, P.A.] January 2, 2003 The Honorable Stephen P. Lamb Court of Chancery 500 North King Street Wilmington, DE 19801 RE: Dolphin Limited Partnership I, L.P., et al. v. NCS Acquisition Corp. and Omnicare, Inc. C.A. No. 20101-NC Dear Vice Chancellor Lamb: I write on behalf of plaintiffs in response to the motion by NCS Healthcare, Inc. ("NCS"). Boake A. Sells and Richard L. Osborne (collectively, the "NCS Defendants") to intervene in this Action to oppose plaintiffs' application for a temporary restraining order ("TRO") setting aside $13.5 million for payment of such fees and expenses to plaintiffs' counsel as the Court may award for their successful prosecution of In re NCS Healthcare, Inc. Shareholder Litigation, C.A. No. 19786 (the "Shareholders Action"). Plaintiffs do not oppose intervention. Indeed, the papers submitted by the NCS Defendants confirm the necessity for a TRO. In their proposed answer in intervention, the NCS Defendants concede two undeniable master facts underlying plaintiffs' application for a TRO. The NCS defendants admit the allegations of the fifth, sixth and seventh sentences of Paragraph 1 of plaintiffs' amended complaint; The Honorable Stephen P. Lamb January 2, 2003 Page 2 As a result of the successful prosecution of the Shareholders Action, the Genesis Merger Agreement and two related voting agreements that would have compelled approval of the Genesis Merger were enjoined. Thereafter, a bidding contest between Genesis and Omnicare ensued, pursuant to which NCS will be acquired at $5.50 per share. The increase of approximately $3.90 (340%) per share constitutes about $102 million in the aggregate for the stockholders of NCS. Thus, the NCS Defendants concede that the Shareholders Action (1) was the producing cause of the injunction blocking the Genesis merger, leading to the happy state of affairs NCS' shareholders now enjoy, and (2) the resulting benefit to NCS' shareholders approximates $102,000,000. The necessary consequence of these admitted facts is that plaintiffs' counsel are entitled to a substantial fee. The necessity for a TRO flows from the question posed by the admitted facts: Who is obligated to pay the fee and expenses to which plaintiffs' attorneys are entitled? The NCS Defendants say that Omnicare, Inc. ("Omnicare") is contractually responsible by reason the language of the merger agreement between NCS and Omnicare and the documents disseminated to NCS' shareholders in connection with Omnicare's tender offer for NCS stock. To date, Omnicare appears to disagree with that interpretation of the relevant documents, and presumably will rely on the pronouncements of this Court in cases such as Mentor Graphics v. Quickturn Design Systems, 789 A.2d 1216, 1233 (Del. Ch. 2001)(1) and Weinberger v. - ---------- (1) "In cases where the fee-compensable benefit consists of the creation of a fund, the fee is payable from the fund or, failing that, by those persons to whom the fund was distributed." The Honorable Stephen P. Lamb January 2, 2003 Page 3 UOP, INC., 517 A.2d 653, 654 (Del. Ch. 1986)(2) for the proposition that the fee and expenses awarded to plaintiffs' counsel should be paid out of the fund available to NCS' shareholders, the beneficiaries of plaintiffs' totally successful services. If this Court or the Delaware Supreme Court agrees with Omnicare, then, absent an injunction setting aside a portion of the tender offer/merger proceeds to provide the funding source for payment of the fees and expenses which may be awarded, plaintiffs' counsel will be deprived of any compensation whatsoever because it will be impossible to collect the amount awarded from thousands of widely dispersed NCS shareholders. That is the imminent, irreparable injury which plaintiffs' counsel face it a TRO is not entered before the tender offer proceeds are disbursed shortly after January 7, 2003 when the tender offer closes. The NCS Defendants take issue with the quantum of the escrow plaintiffs seek. Their arguments overlook the fundamental issued implicated by plaintiffs application: The amount of the escrow should be no less than the aggregate amount of fees and expenses which the Court may ultimately award. In other words, this is not the time to decide what amount of compensation will be awarded when plaintiffs' application (which has not yet been filed) is adjudicated, but rather what amount should be set aside to ensure that the award, when made, - ----------- (2)"Under [the common fund] exception, where a party, acting on behalf of a class, is successful in creating a common fund for the benefit of all class members, attorneys' fees will be paid from the common fund or property." The Honorable Stephen P. Lamb January 2, 2003 Page 4 will not exceed the escrow, because plaintiffs' attorneys will be unable to collect any such excess from NCS' shareholders, and will thereby suffer irreparable injury. In this context, plaintiffs submit that $13,500,000 is a reasonable sum to set aside. It represents approximately 13% of the $102,000,000 benefit(3), a percentage considerably less than this Court has awarded in cases, like this one, in which the litigation was the sole producing cause; the extrapolated hourly rate comports with the rates produced by the awards in In Re Metro Mobile CTS, Inc. Shareholders Litig., Del. Ch., C.A. No. 12300, Berger, - ------------- (3)The NCS Defendants are mistaken in suggesting that they (and their co-defendants, directors Outcalt and Shaw) can free-ride on the results achieved in the Shareholders Action without contributing to the fees and expenses of plaintiffs' counsel. As the Delaware Supreme Court explained in Goodrich v. E.F. Group, Inc., 681 A.2d 1039, 1044-45 n. 5 (Del. 1996): In Delaware, there is no class action or derivative suit prerequisite, however, to an award of attorney's fees under the common benefit exception. The "[i]mposition of a class action requirement would be inconsistent with the equitable foundations of the common benefit exception ... The form of suit is not a deciding factor; rather, the question to be determined is whether a plaintiff, in bringing a suit either individually or representatively, has conferred a benefit on others." Tandycrafts, Inc. v. Initio Partners, Del. Supr., 662 A.2d 1162, 1166 (1989) (quoting Reiser v. Del Monte Properties Co., 605 F.2d 135, 1139-40 (9th Cir. 1979)). Accord Sprague v. Ticonic National Bank, 307 U.S. 161, 167, 59 S.CT. 777, 780, 83 L.ED. 1184 (1939) (holding that "the absence of an avowed class suit ... hardly touch[es] the power of equity in doing justice as between a party and the beneficiaries of his litigation"). The Honorable Stephen P. Lamb January 2, 2003 Page 5 V.C. (Aug. 18, 1993) ($4,000 per hour) and Dagron v. Perelman, Del. Ch., C.A. No. 15101, Chandler, C. (Aug. 29, 1997) ($3,500 per hour), but neither of those cases called for the extensive and intensive labors which the Shareholders Action demanded; and the escrowed sum approximates the award in In Re Digex, Inc. Shareholder Litigation, Del. Ch., C.A. No. 18336, Chandler, V.C. (April 6, 2001) ($12,300,000 for approximately $1.4 million in "lodestar"), a notable example of shareholder benefits which would not have been realized but for the litigative efforts of plaintiffs' counsel. For these reasons and the reasons set forth in plaintiffs' moving papers, plaintiffs submit that their application for a TRO should be granted in all respects. Respectfully, /s/ Joseph A. Rosenthal ----------------------- Joseph A. Rosenthal JAR/cms cc: Robert J. Kriner, Jr., Esquire Edward P. Welch, Esquire Donald J. Wolfe, Jr., Esquire Jon E. Abramczyk, Esquire Edward M. McNally, Esquire Register in Chancery EX-99 4 exa1-vvv.txt EXHIBIT (A)(1)(VVV) Exhibit (a)(1)(VVV) IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY DOLPHIN LIMITED PARTNERSHIP I, L.P., : REMESH 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 2 CERTIFICATE OF SERVICE I, Joseph A. Rosenthal, Esquire, do hereby certify that on this 27th day of December, 2002, I caused copies of the foregoing document to be served via hand delivery upon: Donald J. Wolfe, Jr., Equire Potter Anderson & Corroon LLP 1313 North Market Street Wilmington, DE 19801 /s/ Joseph A. Rosenthal ------------------------------------- Joseph A. Rosenthal cc: Edward B. Welch, Esquire David C. McBride, Esquire Elizabeth Ann Brown, Esquire John E. Abramczyk, Esquire EX-99 5 exa1-www.txt EXHIBIT (A)(1)(WWW) Exhibit (a)(1)(WWW) [LETTERHEAD OF OMNICARE, INC.] Omnicare news release - -------------------------------------------------------------------------------- OMNICARE ANNOUNCES DELAWARE CHANCERY COURT ORDER COVINGTON, Ky., January 3, 2003 -- Omnicare, Inc. (NYSE: OCR), a leading provider of pharmaceutical care for the elderly, today announced that, on January 2, 2003, the Delaware Chancery Court ordered Omnicare to place a portion of the amount being paid to the stockholders of NCS HealthCare, Inc. (NCSS.OB) pursuant to the Agreement and Plan of Merger between Omnicare and NCS in escrow pending a determination of the Chancery Court as to the amount of fees and expenses owed to the NCS stockholder-plaintiffs' attorneys. The Chancery Court ordered Omnicare to deposit $13,500,000 of the amount to be paid to NCS stockholders in Omnicare's tender offer and merger in an escrow account within three business days of the closing of Omnicare's tender offer pending a further order of the Chancery Court regarding the amount of the fees and expenses owed to the NCS stockholder-plaintiffs' attorneys. The Chancery Court further ordered that the escrow amount be withheld from the amount to be paid with respect to each share of NCS class A common stock and class B common stock acquired by Omnicare in its tender offer and the merger on a pro rata basis. The NCS stockholder-plaintiffs had filed a complaint seeking, among other things, the order requiring Omnicare to escrow $13,500,000 of the amount to be paid to NCS stockholders in Omnicare's tender offer and merger. This amount, the stockholder-plaintiffs claim, is required to pay the fees and expenses owed to the stockholder-plaintiffs' attorneys. Omnicare is reviewing the Chancery Court's order and currently intends to revise its tender offer documents to reflect the Court's order. 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. -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, including the supplement thereto, and a related revised 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 the amount being escrowed and the amount to be withheld from the amount to be paid with respect to each share of NCS common stock, 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 realization of anticipated revenues, economies of scale, cost synergies and profitability; 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 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/Todd Glass Omnicare, Inc. Joele Frank, Wilkinson Brimmer Katcher (859) 392-3331 (212) 355-4449, ext. 121 -----END PRIVACY-ENHANCED MESSAGE-----