-----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, UAsMQoeLYt6jkP0UvoUPw5JZzPq7JKDWTBZWIcVFLi64+P8jIgueu7goBvq0A91G tOE7iIf9CV76lHH+lfQj8Q== 0000950117-03-000029.txt : 20030106 0000950117-03-000029.hdr.sgml : 20030106 20030106103624 ACCESSION NUMBER: 0000950117-03-000029 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20030106 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: 03504116 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 a34107.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. 42 ------------------- 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. 42 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 5. Past Contacts, Transactions, Negotiations and Agreements. Item 5 is hereby amended to add the following: On January 2, 2003, the Court of Chancery of the State of Delaware (the "Chancery Court") issued an order (the "Order") enjoining Omnicare from paying $13,500,000 of the aggregate amount payable to stockholders of the Company in the Offer and the Proposed Merger and was ordered to deposit such amount in an interest-bearing escrow account pending a determination by the Chancery Court with respect to the stockholder-plaintiffs' request for attorneys' fees and expenses incurred in connection with the stockholder-plaintiffs' action against the Company and its directors entitled "In re NCS HealthCare Shareholders Litigation" (C.A. No. 19786). The Chancery Court further ordered that the entire escrow amount be withheld by proration among all Shares acquired by Omnicare in the Offer and the Proposed Merger. On January 5, 2003, Omnicare and the Company entered into a letter agreement (the "Letter Agreement") with respect to the Order. Pursuant to the Letter Agreement, Omnicare and the Company have agreed, among other things, that, subject to approval of the Chancery Court, (i) Omnicare will contribute $4,500,000 of the $13,500,000 required by the Order to be deposited into the escrow account, (ii) the balance of the escrow account, that is, $9,000,000, will be withheld by proration among the Shares (including options to acquire Shares) to be acquired by Omnicare and Purchaser in the Offer and the Proposed Merger and (iii) if any amount of the escrow account remains after payment of the stockholder-plaintiffs' attorneys' fees and expenses and any fees and expenses incurred in connection with the establishment of the escrow account, such excess amount will be distributed as follows: (1) any amount in excess of $11,000,000 will be distributed to Omnicare and (2) after distribution to Omnicare in accordance with clause (1), if applicable, (A) 81.82% of any remaining amount will be distributed pro rata among all Shares (including options to acquire Shares) acquired by Omnicare and Purchaser in the Offer and the Proposed Merger and (B) 18.18% of any remaining amount will be distributed to Omnicare. In addition, Omnicare and the Company have agreed to use commercially reasonable efforts to challenge the stockholder-plaintiffs' fee application to seek to reduce the amount of the fees and expenses to be awarded to the stockholder-plaintiffs' attorneys to a reasonable amount. The full text of the Letter Agreement is filed as Exhibit (d)(3) hereto and is incorporated herein by reference. On January 6, 2003, Omnicare issued a press release relating to the Letter Agreement, the full text of which is filed as Exhibit (a)(1)(XXX) hereto and is incorporated herein by reference. Item 12. Exhibits. Item 12 is hereby amended and supplemented with the following information: Exhibit (a)(1)(XXX) Press Release issued by Omnicare, Inc. on January 6, 2003. Exhibit (d)(3) Letter Agreement, dated January 5, 2003, between Omnicare, Inc., NCS Acquisition Corp. and NCS HealthCare, 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: January 6, 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)(1)(XXX) Press Release issued by Omnicare, Inc. on January 6, 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.* (d)(3) Letter Agreement, dated January 5, 2003, between Omnicare, Inc., NCS Acquisition Corp. and NCS HealthCare, Inc. (e) None. (f) None. (g) None. (h) None.
- --------- * Previously filed. EX-99 3 ex-a1xxx.txt EXHIBIT (A)(1)(XXX) Exhibit (a)(1)(XXX) [LETTERHEAD OF OMNICARE, INC.] Omnicare news release - -------------------------------------------------------------------------------- OMNICARE TO CONTRIBUTE TO NCS STOCKHOLDER ESCROW FUND COVINGTON, Ky., January 6, 2003 -- Omnicare, Inc. (NYSE: OCR), a leading provider of pharmaceutical care for the elderly, today announced that it has agreed, subject to court approval, to contribute $4,500,000 to the $13,500,000 stockholder escrow fund, which the Delaware Chancery Court has ordered be entirely funded with amounts withheld from the aggregate amount payable to stockholders of NCS HealthCare, Inc. (NCSS.OB). On January 2, 2003, Omnicare was enjoined by the Delaware Chancery Court from paying $13,500,000 of the aggregate amount payable to stockholders of NCS in Omnicare's tender offer and merger and was ordered to deposit such amount in an interest-bearing escrow account pending a determination by the Chancery Court with respect to the NCS stockholder-plaintiffs' request for attorneys' fees and expenses. The court further ordered that the entire escrow amount be withheld by proration among all shares of NCS common stock acquired by Omnicare in the tender offer and the merger. On January 5, 2003, Omnicare entered into a letter agreement with NCS which provided that, subject to approval of the Chancery Court, Omnicare would contribute $4,500,000 of the amount required to be deposited in escrow. As a result, only $9,000,000 of the escrow amount will need to be withheld by proration among the shares of NCS common stock (including stock options) to be acquired by Omnicare in the tender offer and the merger. Pursuant to the letter agreement, Omnicare has agreed that the first $2,500,000 of any amount awarded to the stockholder-plaintiffs' counsel from the escrow account will be taken from Omnicare's contribution to the escrow account. An award, if any, in excess of $2,500,000 will be funded out of the remainder of the escrow account on a pro rata basis, as follows: (i) approximately 82% of such amount will be taken from the aggregate amount ($9,000,000) withheld from the NCS stockholders and (ii) approximately 18% of such amount will be taken from the remaining $2,000,000 contributed by Omnicare. Omnicare currently intends to amend its tender offer materials to reflect the Chancery Court's order and the letter agreement with NCS. 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, 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 matters relating to the escrow of funds in connection with the NCS stockholder-plaintiffs' request for attorneys' fees and expenses, 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 /Nina Covalesky Omnicare, Inc. Joele Frank, Wilkinson Brimmer Katcher (859) 392-3331 (212) 355-4449, ext. 121 EX-99 4 ex99-d3.txt EXHIBIT (D)(3) EXHIBIT (d)(3) [LETTERHEAD OF OMNICARE, INC.] January 5, 2003 NCS HealthCare, Inc. 3201 Enterprise Parkway Suite 220 Beachwood, Ohio 44122 Attention: Jon H. Outcalt Dear Mr. Outcalt: Reference is made to that certain Agreement and Plan of Merger (the "Merger Agreement"), dated as of December 17, 2002, by and among Omnicare, Inc. ("Parent"), NCS Acquisition Corp., a wholly owned subsidiary of Omnicare ("Sub"), and NCS HealthCare, Inc. (the "Company"), which provides, among other things, that Parent and Sub will acquire each outstanding share of Class A common stock, par value $0.01 per share (the "Company Class A Common Stock") and Class B common stock, par value $0.01 per share (the "Company Class B Common Stock" and together with the Company Class A Common Stock, the "Company Common Stock") at a purchase price of $5.50 per share of Company Common Stock, net to the seller in cash, without any interest thereon (such purchase price, the "Offer Price"), upon the terms and subject to the conditions set forth in the Merger Agreement. Capitalized terms not otherwise defined herein, shall have the meaning set forth in the Merger Agreement. On January 2, 2003, the Court of Chancery of the State of Delaware (the "Chancery Court") issued an order (the "Order") (i) temporarily restraining and enjoining Parent and Sub from paying $13,500,000 (the "Escrow Fund") of the aggregate amount payable to stockholders of the Company pursuant to the Merger Agreement to such stockholders, (ii) providing that the Escrow Fund shall be withheld by proration among all shares of Company Common Stock acquired by Parent and Sub in the Offer and the Merger and (iii) requiring that Parent and Sub deposit the Escrow Fund in an interest bearing escrow account within three (3) business days following the closing of the Offer pending further order of the Chancery Court (the "Fee Application Order") with respect to a request of certain stockholders of the Company (the "Stockholder-Plaintiffs") for attorneys' fees and expenses incurred in connection with the Stockholder-Plaintiffs' action against the Company and its directors entitled "In re NCS HealthCare Shareholders Litigation" (C.A. No. 19786). In consideration of the mutual agreements and covenants set forth below, Parent, Sub and the Company hereby agree as follows: 1. Parent and Sub shall deposit the $13,500,000 Escrow Fund into an interest-bearing escrow account (the "Escrow Account"), as required by the Order. 2. Subject to approval of the Chancery Court, Parent shall contribute $4,500,000 (the "Parent Contribution") of the aggregate amount required by the Order to be deposited into the Escrow Fund. The balance of the Escrow Fund, $9,000,000, shall Board of Directors NCS HealthCare, Inc. January 5, 2003 Page 2 be withheld by proration among the shares of Company Common Stock (including Company Options) to be acquired by Parent and Sub in the Offer and the Merger, as required by the Order. 3. If any amount of the Escrow Fund remains in the Escrow Account after payment of (a) the Stockholder-Plaintiffs' attorneys' fees and expenses in accordance with the Fee Application Order or any appeal therefrom and (b) any fees and expenses incurred in connection with the establishment of the Escrow Fund, such excess amount shall be distributed as follows: (a) any amount in excess of $11,000,000 shall be distributed to Parent and (b) after distribution to Parent in accordance with clause (a), if applicable, (i) 81.82% of any remaining amount shall be distributed pro rata among all shares of Company Common Stock (including Company Options) acquired by Parent and Sub in the Offer and the Merger and (ii) 18.18% of any remaining amount shall be distributed to Parent subject to reasonable rounding. 4. The Company acknowledges and agrees that (a) the deposit by Parent and Sub of the Escrow Fund into the Escrow Account, (b) withholding by proration among shares of Company Common Stock (including Company Options) the portion of the Escrow Fund to be deposited into the Escrow Account, as described in Paragraph 2 of this Letter Agreement, and (c) Parent's and Sub's compliance with the provisions of this Letter Agreement, do not violate the terms and provisions of the Merger Agreement, which remains in full force and effect, or in any way constitute a reduction in the purchase price of $5.50 per share of Company Common Stock being paid by Parent and Sub in the Offer and the Merger. 5. As promptly as practicable after the date hereof, Parent and Sub shall amend the Schedule TO and the Company shall amend the Schedule 14D-9 to reflect the terms and provisions of this Letter Agreement. The amendment to the Company's Schedule 14D-9 shall include, among other things, the Recommendations and a statement that all of the Company's directors and executive officers intend to tender their shares of Company Stock into the Offer. 6. Parent and the Company shall use commercially reasonable efforts to challenge the Stockholder-Plaintiffs' fee application to seek to reduce the amount of the fees and expenses to be awarded to the Stockholder-Plaintiffs' attorneys to a reasonable amount. Parent and Purchaser have been advised by the Company that Boake A. Sells and Richard L. Osborne also will challenge the Stockholder-Plaintiffs' fee application and seek to reduce the amount of the Stockholder- Plaintiffs' attorneys' fees and expenses. Parent, Purchaser and the Company shall reasonably cooperate in good faith with Messrs. Sells and Osborne in connection with the foregoing; provided, however, neither Parent, Purchaser nor the Company shall be responsible for any fees and expenses (including attorneys' fees) incurred by either or both of Messrs. Sells and Osborne in connection with the foregoing. 7. This Letter Agreement shall be governed by the laws of the State of Delaware without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdictions) that would cause application of the laws of any jurisdiction other than the State of Delaware. All actions and Board of Directors NCS HealthCare, Inc. January 5, 2003 Page 3 proceedings arising out of or relating to this Letter Agreement shall be heard and determined in any state or federal court sitting in the State of Delaware. 8. This Letter Agreement may not be amended, except by an instrument in writing signed on behalf of each of the parties to this Letter Agreement. In addition, any change to Paragraph 1, 2 or 3 of this Letter Agreement will require the consent of Messrs. Sells and Osborne (whether or not they are directors of the Company). 9. Nothing in this Letter Agreement, express or implied, is intended or shall be construed to create any third-party beneficiaries, except for the provisions of Paragraph 8 as they relate to Messrs. Sells and Osborne. 10. This Letter Agreement may be executed in counterparts, which together shall constitute one and the same Letter Agreement. The parties to this Letter Agreement may execute more than one copy of this Letter Agreement, each of which shall constitute an original. Board of Directors NCS HealthCare, Inc. January 5, 2003 Page 4 If the foregoing accurately reflects the agreement among Parent, Sub and the Company with respect to the foregoing, please countersign this letter in the space indicated below and return a copy to Omnicare by facsimile (859-392-3360) and Mort Pierce (212-259-6333), whereupon this letter shall constitute a binding agreement among Parent, Sub and the Company. Sincerely, OMNICARE, INC. By: /s/ Joel F. Gemunder ------------------------------------- Joel F. Gemunder President and Chief Executive Officer NCS ACQUISITION CORP. By: /s/ David W. Froesel, Jr. ------------------------------------- David W. Froesel, Jr. Chief Financial Officer Agreed to and accepted as of the date first set forth above: NCS HEALTHCARE, INC. By: /s/ Jon H. Outcalt ----------------------------------- Name: Jon H. Outcalt Title: Chairman Copies to: H. Jeffrey Schwartz (Benesch, Friedlander, Coplan & Aronoff, LLP) Robert B. Pincus (Skadden, Arps, Slate, Meagher & Flom LLP Morton A. Pierce (Dewey Ballantine LLP) -----END PRIVACY-ENHANCED MESSAGE-----