-----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, Ikmr7c3on0i7SaAAWmGXOisJHhahmqcnIzJ2PUhwsIUvpv1K/GiDQ200gHp2ztXC 6IlvdKEsbVSparpNPWaIng== 0000950117-03-000059.txt : 20030114 0000950117-03-000059.hdr.sgml : 20030114 20030108083139 ACCESSION NUMBER: 0000950117-03-000059 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20030108 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: 03507063 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 a34120.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. 43 ------------------- 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 $144,020,382 $13,249.88
* Estimated for purposes of calculating the amount of the filing fee only. This amount assumes the purchase of (i) 18,712,812 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 January 7, 2003 (less 1,000 shares of such class owned by Omnicare, Inc.), (ii) 5,038,996 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 January 7, 2003, (iii) 2,339,858 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. 43 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 first Supplement to the Offer to Purchase, dated December 23, 2002 (the "First Supplement") and the second Supplement to the Offer to Purchase, dated January 8, 2003 (the "Second Supplement"), and in the related revised Letter of Transmittal (the "Letter of Transmittal" which, together with the Offer to Purchase, the First Supplement and the Second Supplement, as hereby or hereafter amended or supplemented from time to time, constitute the "Offer"). Copies of the Offer to Purchase, the First Supplement, the Second Supplement and the related revised Letter of Transmittal are attached as Exhibits (a)(1)(A), (a)(1)(HHH), (a)(1)(YYY) and (a)(1)(ZZZ), 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 First Supplement, the Second Supplement and the Schedule TO. Items 1 through 9, and Item 11 The information in the Second Supplement to the Offer to Purchase dated January 8, 2003, and the related revised Letter of Transmittal, copies of which are filed with this Schedule TO as Exhibits (a)(1)(YYY) and (a)(1)(ZZZ) hereto, respectively, are incorporated herein by reference in answer to Items 1 through 9, and Item 11 in this Tender Offer Statement on Schedule TO. Item 4. Terms of the Transaction. On January 8, 2003, Omnicare issued a press release announcing that it has extended, and is amending, the Offer in accordance with (a) the order of the Court of Chancery of the State of Delaware, issued on January 6, 2003, the full text of which is filed as Exhibit (a)(1)(EEEE) hereto and is incorporated herein by reference and (b) the letter agreement, dated January 5, 2003, among Omnicare, Purchaser and the Company which is filed as Exhibit (d)(3) hereto and is incorporated herein by reference. The tender offer is now scheduled to expire at 12:00 Midnight, New York City time, on Tuesday, January 14, 2003, unless extended. The full text of the press release is filed as Exhibit (a)(1)(FFFF) hereto and is incorporated herein by reference. Item 12. Exhibits. Item 12 is hereby amended and supplemented with the following information: Exhibit (a)(1)(YYY) Second Supplement to the Offer to Purchase dated January 8, 2003. Exhibit (a)(1)(ZZZ) Revised Letter of Transmittal. Exhibit (a)(1)(AAAA) Revised Notice of Guaranteed Delivery. Exhibit (a)(1)(BBBB) Revised Letter to Brokers, Dealers, Commercial Banks, Trust Companies, and Other Nominees. Exhibit (a)(1)(CCCC) Revised Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies, and Other Nominees. Exhibit (a)(1)(DDDD) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. Exhibit (a)(1)(EEEE) Order of the Court of Chancery of the State of Delaware, issued on January 6, 2003. Exhibit (a)(1)(FFFF) Press Release issued by Omnicare, Inc. on January 8, 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 8, 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)(1)(YYY) Second Supplement to the Offer to Purchase dated January 8, 2003. (a)(1)(ZZZ) Revised Letter of Transmittal. (a)(1)(AAAA) Revised Notice of Guaranteed Delivery. (a)(1)(BBBB) Revised Letter to Brokers, Dealers, Commercial Banks, Trust Companies, and Other Nominees. (a)(1)(CCCC) Revised Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies, and Other Nominees. (a)(1)(DDDD) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (a)(1)(EEEE) Order of the Court of Chancery of the State of Delaware, issued on January 6, 2003. (a)(1)(FFFF) Press Release issued by Omnicare, Inc. on January 8, 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, among Omnicare, Inc., NCS Acquisition Corp. and NCS HealthCare, Inc.* (e) None. (f) None. (g) None. (h) None.
- --------- * Previously filed. EX-99 3 ex99-a1yyy.txt EXHIBIT (A)(1)(YYY) Exhibit (a)(1)(YYY) Second Supplement to the Offer to Purchase for Cash All Outstanding Shares of Class A Common Stock and Class B Common Stock of NCS HEALTHCARE, INC. at $5.50 NET PER SHARE by NCS ACQUISITION CORP., a wholly-owned subsidiary of OMNICARE, INC. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, JANUARY 14, 2003, UNLESS THE OFFER IS EXTENDED. PURSUANT TO AN ORDER OF THE CHANCERY COURT (AS DEFINED HEREIN), DATED JANUARY 6, 2003, AND A LETTER AGREEMENT, DATED JANUARY 5, 2003, AMONG OMNICARE, INC. ('OMNICARE'), NCS ACQUISITION CORP., A WHOLLY-OWNED SUBSIDIARY OF OMNICARE ('PURCHASER'), AND NCS HEALTHCARE, INC. (THE 'COMPANY'), UPON ACCEPTANCE BY PURCHASER OF SHARES (AS DEFINED HEREIN) TENDERED IN THE OFFER (AS DEFINED HEREIN), BASED ON THE NUMBER OF FULLY DILUTED SHARES OUTSTANDING ON JANUARY 7, 2003, YOU WILL RECEIVE $5.149 PER SHARE IN CASH, WITHOUT INTEREST AND LESS REQUIRED WITHHOLDING TAXES, AND OMNICARE AND PURCHASER WILL DEPOSIT THE REMAINING $0.351 OF THE OFFER PRICE (AS DEFINED HEREIN) IN CASH PER SHARE INTO THE ESCROW ACCOUNT (AS DEFINED HEREIN) PENDING THE FEE APPLICATION ORDER (AS DEFINED HEREIN). ANY AMOUNT REMAINING IN THE ESCROW ACCOUNT INCLUDING ANY INTEREST FOLLOWING PAYMENT OF THE STOCKHOLDER-PLAINTIFFS' ATTORNEYS' FEES AND EXPENSES IN ACCORDANCE WITH THE FEE APPLICATION ORDER WILL BE DISTRIBUTED TO THE HOLDERS OF SHARES, INCLUDING OPTIONS (AS DEFINED HEREIN), AND OMNICARE, AS DESCRIBED IN THIS SECOND SUPPLEMENT. BECAUSE THE AMOUNT OF ANY ATTORNEY FEE AWARD CANNOT BE DETERMINED AT THIS TIME, HOLDERS OF SHARES ULTIMATELY MAY RECEIVE ALL, A PORTION OR NONE OF THE $0.351 PER SHARE REQUIRED TO BE DEPOSITED IN THE ESCROW ACCOUNT. SEE SECTION 1 ('AMENDED TERMS OF THE OFFER; EXPIRATION DATE') OF THIS SECOND SUPPLEMENT. THE OFFER IS CONDITIONED UPON SATISFACTION OF THE CONDITIONS DESCRIBED IN SECTION 9 ('CONDITIONS TO THE OFFER') OF THE FIRST SUPPLEMENT (AS DEFINED HEREIN). THE OFFER IS NOT CONDITIONED ON OBTAINING FINANCING. --------------------- The Dealer Manager for the Offer is: MERRILL LYNCH & CO. January 8, 2003 IMPORTANT If you wish to tender all or any part of your shares of class A common stock, par value $0.01 per share, or class B common stock, par value $0.01 per share, of NCS HealthCare, Inc. (collectively, the 'Shares') prior to the expiration date of the Offer, you should either (1) complete and sign the revised (green) Letter of Transmittal (or a facsimile thereof) in accordance with the instructions in the revised Letter of Transmittal included with this Second Supplement (as defined herein), have your signature thereon guaranteed if required by Instruction 1 of the revised Letter of Transmittal, mail or deliver the revised Letter of Transmittal (or such facsimile thereof) and any other required documents to the depositary for the Offer and either deliver the certificates for such Shares to the depositary for the Offer along with the revised Letter of Transmittal (or a facsimile thereof) or deliver such Shares pursuant to the procedures for book-entry transfers set forth in Section 4 ('Procedure for Tendering Shares') of the Offer to Purchase (as defined herein) or (2) request your broker, dealer, commercial bank, trust company or other nominee to effect the transaction for you. If you have Shares registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you must contact such broker, dealer, commercial bank, trust company or other nominee if you desire to tender your Shares. If you desire to tender your Shares and your certificates for such Shares are not immediately available, or you cannot comply with the procedures for book-entry transfers described in the Offer to Purchase on a timely basis, you may tender such Shares by following the procedures for guaranteed delivery set forth in Section 4 ('Procedure for Tendering Shares') of the Offer to Purchase. SHARES PREVIOUSLY VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN CONSTITUTE VALID TENDERS FOR PURPOSES OF THE OFFER. STOCKHOLDERS ARE NOT REQUIRED TO TAKE ANY FURTHER ACTION WITH RESPECT TO SUCH SHARES IN ORDER TO RECEIVE THE OFFER PRICE, UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF THE OFFER, IF SHARES ARE ACCEPTED FOR PAYMENT AND PAID FOR BY PURCHASER PURSUANT TO THE OFFER, EXCEPT AS MAY BE REQUIRED BY THE GUARANTEED DELIVERY PROCEDURE IF SUCH PROCEDURE WAS UTILIZED. QUESTIONS OR REQUESTS FOR ASSISTANCE MAY BE DIRECTED TO INNISFREE M&A INCORPORATED, THE INFORMATION AGENT, OR MERRILL LYNCH & CO., THE DEALER MANAGER, AT THEIR RESPECTIVE ADDRESSES AND TELEPHONE NUMBERS SET FORTH ON THE BACK COVER OF THIS SECOND SUPPLEMENT. YOU CAN ALSO OBTAIN ADDITIONAL COPIES OF THE OFFER TO PURCHASE, THE FIRST SUPPLEMENT, THIS SECOND SUPPLEMENT, THE REVISED LETTER OF TRANSMITTAL AND THE REVISED NOTICE OF GUARANTEED DELIVERY FROM THE INFORMATION AGENT OR YOUR BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR OTHER NOMINEE. THE OFFER TO PURCHASE, THE FIRST SUPPLEMENT, THIS SECOND SUPPLEMENT AND THE RELATED REVISED (GREEN) LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION, AND YOU SHOULD CAREFULLY READ THEM IN THEIR ENTIRETY BEFORE YOU MAKE A DECISION WITH RESPECT TO THE OFFER. TABLE OF CONTENTS
PAGE ---- INTRODUCTION................................................ 1 THE OFFER................................................... 4 1. Amended Terms of the Offer; Expiration Date.......... 4 2. Procedure for Tendering Shares....................... 5 3. Certain U.S. Federal Income Tax Consequences......... 6 4. Price Range of Class A Common Stock; Dividends....... 6 5. Background of the Offer.............................. 7 6. Legal Proceedings.................................... 8 7. Miscellaneous........................................ 9
TO: THE HOLDERS OF CLASS A COMMON STOCK AND CLASS B COMMON STOCK OF NCS HEALTHCARE, INC. INTRODUCTION The following information (the 'Second Supplement') amends and supplements the Offer to Purchase, dated August 8, 2002 (the 'Offer to Purchase'), of NCS Acquisition Corp., a Delaware corporation (the 'Purchaser') and a wholly-owned subsidiary of Omnicare, Inc., a Delaware corporation ('Omnicare'), as amended and supplemented by the Supplement to the Offer to Purchase, dated December 23, 2002 (the 'First Supplement'), pursuant to which Purchaser is offering to purchase all of the issued and outstanding shares of class A common stock, par value $0.01 per share ('Class A Common Stock'), and all of the issued and outstanding shares of class B common stock, par value $0.01 per share ('Class B Common Stock' and, together with Class A Common Stock, the 'Shares'), of NCS HealthCare, Inc., a Delaware corporation (the 'Company'), at a price of $5.50 per Share (the 'Offer Price'), 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, the First Supplement, this Second Supplement and the related revised (green) Letter of Transmittal (which together, as amended, supplemented or otherwise modified from time to time, constitute the 'Offer'). PURSUANT TO AN ORDER OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE (THE 'CHANCERY COURT'), DATED JANUARY 6, 2003 (THE 'ORDER'), AND A LETTER AGREEMENT (THE 'LETTER AGREEMENT'), DATED JANUARY 5, 2003, AMONG OMNICARE, PURCHASER AND THE COMPANY, THE OFFER PRICE SHALL BE DISTRIBUTED BY OMNICARE AND PURCHASER AS FOLLOWS: (I) HOLDERS OF SHARES WILL RECEIVE $5.149 PER SHARE IN CASH IN THE OFFER AND THE PROPOSED MERGER (AS DEFINED IN THE OFFER TO PURCHASE), AS APPLICABLE, AND (II) OMNICARE SHALL DEPOSIT $0.351 IN CASH FOR EACH SHARE TO BE ACQUIRED BY OMNICARE AND PURCHASER IN THE OFFER AND THE PROPOSED MERGER IN THE ESCROW ACCOUNT (AS DEFINED HEREIN). On January 2, 2003, the Chancery Court entered an order (i) temporarily restraining and enjoining Omnicare and Purchaser from paying $13,500,000 (the 'Escrow Amount') of the aggregate amount payable by Omnicare and Purchaser pursuant to the Agreement and Plan of Merger, dated as of December 17, 2002, by and among the Company, Omnicare and Purchaser (the 'Merger Agreement'), to holders of Shares, (ii) providing that the Escrow Amount shall be withheld by proration among all Shares acquired by Omnicare and Purchaser in the Offer and the Proposed Merger and (iii) requiring that Omnicare and Purchaser deposit the Escrow Amount in an interest-bearing escrow account (the 'Escrow Account') within three (3) business days following the closing of the Offer, pending further order of the Chancery Court or appeal therefrom (the 'Fee Application Order') with respect to an application of certain stockholders of the Company (the 'Stockholder-Plaintiffs') for attorneys' fees and expenses in connection with their action against the Company and its directors entitled 'In re NCS HealthCare Shareholders Litigation' (C.A. No. 19786). This order would have required Omnicare and Purchaser to withhold approximately $0.53 of the Offer Price for each Share to be purchased by Omnicare and Purchaser in the Offer and the Proposed Merger and to deposit such amount in the Escrow Account. As a result, holders of Shares would have received approximately $4.97 per Share in cash in the Offer and the Proposed Merger (subject to the subsequent distribution of any excess Escrow Amount, plus any interest on the Escrow Amount, following payment of the Stockholder-Plaintiffs' attorneys' fees and expenses, in accordance with the Fee Application Order, and expenses relating to the establishment of the Escrow Account as described below). On January 5, 2003, Omnicare, Purchaser and the Company entered into the Letter Agreement pursuant to which Omnicare has agreed to contribute $4,500,000 of the Escrow Amount. The parties further agreed that the balance of the Escrow Amount, $9,000,000, would be withheld on a pro rata basis among the Shares (including 'in-the-money' options to acquire Shares ('Options')) to be acquired by Omnicare and Purchaser in the Offer and the Proposed Merger and deposited into the Escrow Account. On January 6, 2003, the Chancery Court entered the Order, which is consistent with the provisions of the Letter Agreement. As a result of Omnicare's contribution, only $0.351 of the Offer Price will be withheld in accordance with the Order with respect to each Share to be acquired by Omnicare and Purchaser in the Offer and the Proposed Merger. In addition, Omnicare has agreed that the first $2,500,000 of the amount awarded to the Stockholder-Plaintiffs' attorneys from the Escrow Account will be paid from the amount contributed to the Escrow Account by Omnicare. An award in excess of $2,500,000 will be funded out of the balance of the Escrow Account as follows: (i) 81.82% of such excess will be paid from the aggregate amount ($9,000,000) withheld from the holders of Shares (including Options) and (ii) 18.18% of such excess amount will be paid from the remaining $2,000,000 contributed by Omnicare. To the extent that any portion of the Escrow Amount, plus any interest on the Escrow Amount, remains in the Escrow Account after payment of the Stockholder-Plaintiffs' attorneys' fees and expenses and expenses relating to the establishment of the Escrow Account, such remaining amount shall be distributed to holders of Shares (including Options) and Omnicare as follows: (i) any amount in excess of $11,000,000 shall be distributed to Omnicare and (ii) (1) 81.82% of the remaining amount shall be distributed to the holders of Shares (including Options) on a pro rata basis and (2) 18.18% of the remaining amount shall be distributed to Omnicare. See Section 1 ('Amended Terms of the Offer; Expiration Date') of this Second Supplement. THE BOARD OF DIRECTORS OF THE COMPANY, BY UNANIMOUS VOTE, (1) HAS APPROVED THE MERGER AGREEMENT, THE OFFER AND THE PROPOSED MERGER, (2) HAS DETERMINED THAT THE TERMS OF THE OFFER AND THE PROPOSED MERGER ARE ADVISABLE, FAIR TO, AND IN THE BEST INTERESTS OF, THE COMPANY AND THE COMPANY STOCKHOLDERS AND (3) RECOMMENDS THAT THE COMPANY STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES TO PURCHASER PURSUANT TO THE OFFER. IN ADDITION, THE BOARD OF DIRECTORS OF THE COMPANY, BY UNANIMOUS VOTE OF THOSE PRESENT, HAS ALSO APPROVED THE LETTER AGREEMENT. This Second Supplement should be read in conjunction with the Offer to Purchase and the First Supplement. Except as otherwise set forth in this Second Supplement and the revised (green) Letter of Transmittal, the terms and conditions previously set forth in the Offer to Purchase, the First Supplement and the related (blue) or (yellow) Letters of Transmittal remain applicable in all respects to the Offer. Unless the context requires otherwise, all capitalized terms used but not defined in this Second Supplement have the meanings ascribed to them in the Offer to Purchase or the First Supplement. Procedures for tendering Shares are set forth in Section 4 ('Procedure for Tendering Shares') of the Offer to Purchase as amended by Section 3 ('Procedure for Tendering Shares') of the First Supplement and Section 2 ('Procedure for Tendering Shares') of this Second Supplement. Tendering stockholders may continue to use the original (blue) Letter of Transmittal and the original (pink) Notice of Guaranteed Delivery previously circulated with the Offer to Purchase, the revised (yellow) Letter of Transmittal and the revised (grey) Notice of Guaranteed Delivery previously circulated with the First Supplement or the revised (green) Letter of Transmittal and the revised (yellow) Notice of Guaranteed Delivery circulated with this Second Supplement. Although the original (blue) Letter of Transmittal previously circulated with the Offer to Purchase and the revised (yellow) Letter of Transmittal previously circulated with the First Supplement do not refer to this Second Supplement, stockholders using such document to tender their Shares will nevertheless be deemed to be tendering pursuant to the Offer as amended and supplemented by this Second Supplement. SHARES PREVIOUSLY VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN CONSTITUTE VALID TENDERS FOR PURPOSES OF THE OFFER. STOCKHOLDERS ARE NOT REQUIRED TO TAKE ANY FURTHER ACTION WITH RESPECT TO SUCH SHARES IN ORDER TO RECEIVE THE OFFER PRICE, UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF THE OFFER, IF SHARES ARE ACCEPTED FOR PAYMENT AND PAID FOR BY PURCHASER PURSUANT TO THE OFFER, EXCEPT AS MAY BE REQUIRED BY THE GUARANTEED DELIVERY PROCEDURE IF SUCH PROCEDURE WAS UTILIZED. According to the Company, as of January 7, 2003, 18,712,812 shares of Class A Common Stock and 5,038,996 shares of Class B Common Stock were issued and outstanding and 2,339,858 shares of Class A Common Stock and 94,858 shares of Class B Common Stock were subject to stock option grants, of which 1,877,584 stock options were 'in-the-money.' As of the date of this Second Supplement, Omnicare beneficially owned 1,000 shares of Class A Common Stock. ACCORDING TO THE COMPANY, THE COMPANY HAS BEEN ADVISED BY EACH OF ITS DIRECTORS AND EXECUTIVE OFFICERS THAT EACH SUCH PERSON INTENDS TO TENDER ALL SHARES OWNED BY SUCH PERSON IN THE OFFER. WE ALSO HAVE BEEN ADVISED BY THE COMPANY THAT, AS A GROUP, ALL OF THE DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY OWN APPROXIMATELY 1,208,737 SHARES OF CLASS A COMMON STOCK AND 4,810,806 SHARES OF CLASS B COMMON STOCK. 2 This Offer does not constitute a solicitation of proxies for any meeting of stockholders of the Company or a solicitation of agent designations to call a special meeting of stockholders of the Company. Any solicitation of proxies which Purchaser or Omnicare might make will be made only pursuant to separate proxy or consent solicitation materials complying with the requirements of Section 14(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the 'Exchange Act'). THE OFFER TO PURCHASE, THE FIRST SUPPLEMENT, THIS SECOND SUPPLEMENT AND THE RELATED REVISED (GREEN) LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION, AND YOU SHOULD CAREFULLY READ THEM IN THEIR ENTIRETY BEFORE YOU MAKE A DECISION WITH RESPECT TO THE OFFER. 3 THE OFFER 1. AMENDED TERMS OF THE OFFER; EXPIRATION DATE. The discussions set forth in Section 1 ('Terms of the Offer; Expiration Date') of the Offer to Purchase and Section 1 ('Amended Terms of the Offer; Expiration Date') of the First Supplement are hereby amended and supplemented as follows: Pursuant to the Merger Agreement, Omnicare and Purchaser have agreed to purchase all outstanding Shares at a price of $5.50 per Share, which is referred to herein as the Offer Price, net to the seller in cash, without interest thereon and less required withholding taxes, upon the terms and subject to the conditions of the Offer. All stockholders whose Shares are validly tendered and not properly withdrawn and accepted for payment pursuant to the Offer (including Shares tendered and not properly withdrawn prior to the date of this Second Supplement) will receive the Offer Price. As of January 7, 2003, there were 25,628,392 Shares outstanding on a fully diluted basis (including Options and excluding Shares owned by Omnicare and its affiliates). Based on such number of outstanding Shares (including Options) and pursuant to the Order and the Letter Agreement, the Offer Price will be distributed by Omnicare and Purchaser as follows: (i) holders of Shares will receive $5.149 per Share, net to the seller in cash, without interest thereon and less required withholding taxes, in the Offer and the Proposed Merger and (ii) to fund the Company stockholders' obligation to pay the Stockholder-Plaintiffs' attorney's fees and expenses, Omnicare and Purchaser are required to withhold from the Offer Price, and deposit into the Escrow Account, $0.351 in cash for each Share to be acquired by Omnicare and Purchaser in the Offer and the Proposed Merger. If any of the Escrow Amount, plus any interest on the Escrow Amount, remains in the Escrow Account after payment of (i) the Stockholder-Plaintiffs' attorneys' fees and expenses in accordance with the Fee Application Order and (ii) any expenses incurred in connection with the establishment of the Escrow Account, such excess amount shall be distributed to holders of Shares (including Options) and Omnicare as follows: (i) any amount in excess of $11,000,000 shall be distributed to Omnicare; and (ii) after distribution to Omnicare in accordance with clause (i), if applicable, (1) 81.82% of any remaining amount shall be distributed pro rata among all Shares (including Options) acquired by Omnicare and Purchaser in the Offer and the Proposed Merger and (2) 18.18% of any remaining amount shall be distributed to Omnicare. The right to receive a portion of the remaining Escrow Amount, if any, as described in this paragraph, is not transferable and will not be certificated. By way of example, the following table sets forth the amount that would be distributed to holders of Shares (including Options) out of the Escrow Account in the event that all, some or none of the Escrow Amount remains in the Escrow Account after payment of the Stockholder-Plaintiffs' attorneys' fees in accordance with the Fee Application Order:
AMOUNT OF THE AWARD FOR AMOUNT PER SHARE (INCLUDING OPTIONS) ATTORNEYS' FEES AND TO BE DISTRIBUTED OUT OF THE EXCESS ESCROW EXPENSES AMOUNT (NOT INCLUDING INTEREST AND EXPENSES) - ---------------------------- -------------------------------------------- $ 0 $0.351 $ 500,000 $0.351 $ 1,000,000 $0.351 $ 1,500,000 $0.351 $ 2,000,000 $0.351 $ 2,500,000 $0.351 $ 3,000,000 $0.335 $ 3,500,000 $0.319 $ 4,000,000 $0.303 $ 4,500,000 $0.287 $ 5,000,000 $0.271 $ 5,500,000 $0.255
(table continued on next page) 4 (table continued from previous page)
AMOUNT OF THE AWARD FOR AMOUNT PER SHARE (INCLUDING OPTIONS) ATTORNEYS' FEES AND TO BE DISTRIBUTED OUT OF THE EXCESS ESCROW EXPENSES AMOUNT (NOT INCLUDING INTEREST AND EXPENSES) - ---------------------------- -------------------------------------------- $ 6,000,000 $0.239 $ 6,500,000 $0.223 $ 7,000,000 $0.208 $ 7,500,000 $0.192 $ 8,000,000 $0.176 $ 8,500,000 $0.160 $ 9,000,000 $0.144 $ 9,500,000 $0.128 $10,000,000 $0.112 $10,500,000 $0.096 $11,000,000 $0.080 $11,500,000 $0.064 $12,000,000 $0.048 $12,500,000 $0.032 $13,000,000 $0.016 $13,500,000 $0.000
The foregoing table is set forth for illustration only. The exact amount of (i) any award to the Stockholder-Plaintiffs' attorneys, (ii) any fees and expenses incurred in connection with the establishment of the Escrow Account and (iii) any accrued interest on the Escrow Amount are not currently known and, therefore, the estimated per Share distributions set forth above may vary as a function of those factors. The Offer has been extended and the Offer will now expire at 12:00 Midnight, New York City time, on Tuesday, January 14, 2003, unless and until Purchaser shall have further extended the period during which the Offer is open. 'Expiration Date' means 12:00 Midnight, New York City time, on Tuesday, January 14, 2003, unless we further extend the period of time for which the Offer is open, in which event 'Expiration Date' means the latest time and date on which the Offer, as so extended, shall expire. As of the close of business on January 7, 2003, approximately 16,463,104 shares of Class A Common Stock and 303,767 shares of Class B Common Stock had been tendered and not properly withdrawn pursuant to the Offer. See Section 8 ('The Merger Agreement') of the First Supplement for a description of the provisions of the Merger Agreement regarding extensions of the Offer by the Purchaser. Under Exchange Act Rule 14d-11 and the terms of the Merger Agreement, Purchaser may, subject to certain conditions, provide a subsequent offering period of from three to 20 business days in length following the expiration of the Offer on the Expiration Date. A subsequent offering period would be an additional period of time, following the expiration of the Offer and the purchase of Shares in the Offer, during which stockholders may tender Shares not tendered in the Offer. A subsequent offering period, if one is included, is not an extension of the Offer, which already will have been completed. 2. PROCEDURE FOR TENDERING SHARES. The discussions set forth in Section 4 ('Procedures for Tendering Shares') of the Offer to Purchase and Section 3 ('Procedures for Tendering Shares') of the First Supplement are hereby amended and supplemented as follows: Tendering stockholders may continue to use the original (blue) Letter of Transmittal and the original (pink) Notice of Guaranteed Delivery previously circulated with the Offer to Purchase, the revised (yellow) Letter of Transmittal and the revised (grey) Notice of Guaranteed Delivery previously circulated with the First Supplement or the revised (green) Letter of Transmittal and the revised 5 (yellow) Notice of Guaranteed Delivery circulated with this Second Supplement. Although the original (blue) Letter of Transmittal previously circulated with the Offer to Purchase and the revised (yellow) Letter of Transmittal previously circulated with the First Supplement do not refer to this Second Supplement, stockholders using such document to tender their Shares will nevertheless be deemed to be tendering pursuant to the Offer as amended and supplemented by this Second Supplement. Procedures for tendering Shares are set forth in Section 4 ('Procedures for Tendering Shares') of the Offer to Purchase. SHARES PREVIOUSLY VALIDLY TENDERED AND NOT PROPERLY WITHDRAWN CONSTITUTE VALID TENDERS FOR PURPOSES OF THE OFFER. STOCKHOLDERS ARE NOT REQUIRED TO TAKE ANY FURTHER ACTION WITH RESPECT TO SUCH SHARES IN ORDER TO RECEIVE THE OFFER PRICE, UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF THE OFFER, IF SHARES ARE ACCEPTED FOR PAYMENT AND PAID FOR BY PURCHASER PURSUANT TO THE OFFER, EXCEPT AS MAY BE REQUIRED BY THE GUARANTEED DELIVERY PROCEDURE IF SUCH PROCEDURE WAS UTILIZED. 3. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES. The discussion set forth in Section 6 ('Certain U.S. Federal Income Tax Consequences') of the Offer to Purchase is hereby amended and supplemented by the following paragraph, which should be deemed the final paragraph of Section 6: For U.S. federal income tax purposes, Omnicare intends to treat (i) the portion of the Escrow Account ($0.351 per Share) withheld by proration among the Shares as being consideration paid to the Company stockholders for their Shares at the time that the funds withheld by proration among the Shares are deposited in the Escrow Account, (ii) an allocable portion of any net earnings on the Escrow Amount as income to the Company stockholders and (iii) any payment to the Stockholder-Plaintiffs' attorneys out of the portion of the Escrow Amount withheld by proration among the Shares as a payment by the Company stockholders to the Stockholder-Plaintiffs' attorneys (which payment should be treated by Company stockholders as a transaction cost that, depending on the circumstances, may reduce the amount of gain, or increase the amount of loss, recognized by them). Conversely, for U.S. federal income tax purposes, Omnicare intends to treat the portion of the Escrow Amount contributed by Omnicare and any net earnings allocable to Omnicare as not giving rise to any additional consideration or income to the Company stockholders, regardless of whether such portion of the Escrow Amount or any such earnings are ultimately returned to Omnicare or paid to the Stockholder-Plaintiffs' attorneys. Other U.S. federal income tax treatments are possible, however, and stockholders are urged to consult their tax advisors regarding the U.S. federal income and other tax consequences to them of the treatment of the Escrow Account that Omnicare intends to adopt as well as of other possible treatments. 4. PRICE RANGE OF CLASS A COMMON STOCK; DIVIDENDS. The discussions set forth in Section 7 ('Price Range of Class A Common Stock; Dividends') of the Offer to Purchase and Section 4 ('Price Range of Class A Common Stock; Dividends') of the First Supplement are hereby amended and supplemented as follows: The high and low intra-day sales prices per share of the Class A Common Stock on the Over-The-Counter Bulletin Board based on published financial sources for the second fiscal quarter of 2003 were $5.43 and $1.68, respectively, and for the third fiscal quarter of 2003 were $5.40 and $5.06, respectively (through January 7, 2003). On January 7, 2003, the last full trading day prior to Omnicare and Purchaser supplementing the Offer as set forth in this Second Supplement, the reported closing price per share of Class A Common Stock was $5.22. The Company has not declared or paid any dividends on its stock for the periods represented above. WE URGE YOU TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES OF CLASS A COMMON STOCK. 6 5. BACKGROUND OF THE OFFER. The discussions set forth under Section 11 ('Background of the Offer') of the Offer to Purchase and Section 6 ('Background of the Offer') of the First Supplement are hereby amended and supplemented as follows: On January 2, 2003, the Chancery Court entered an order temporarily restraining and enjoining Omnicare and Purchaser from paying $13,500,000 to stockholders of the Company in the Offer and the Proposed Merger and ordering Omnicare and Purchaser to deposit this amount, referred to herein as the Escrow Amount, in the Escrow Account pending the Fee Application Order. The Chancery Court further ordered that the entire Escrow Amount be withheld by proration among all Shares acquired by Omnicare and Purchaser in the Offer and the Proposed Merger. This order would have required Omnicare and Purchaser to withhold approximately $0.53 of the Offer Price for each Share to be purchased by Omnicare and Purchaser in the Offer and the Proposed Merger and to deposit such amount in the Escrow Account. As a result, holders of Shares would have received approximately $4.97 per Share in cash in the Offer and the Proposed Merger (subject to the distribution of any excess Escrow Amount (plus any interest on the Escrow Amount) following payment of the Stockholder-Plaintiffs' attorneys' fees and expenses, in accordance with the Fee Application Order, and expenses relating to the establishment of the Escrow Account as described below). Following discussions regarding the Stockholder-Plaintiffs' request for attorneys' fees and the Chancery Court's January 2nd order, on January 5, 2003, Omnicare, Purchaser and the Company entered into the Letter Agreement. Pursuant to the Letter Agreement, Omnicare, Purchaser and the Company have agreed, among other things, that (i) Omnicare will contribute $4,500,000 of the Escrow Amount required by the Chancery Court to be deposited into the Escrow Account, (ii) the balance of the Escrow Amount, that is, $9,000,000, will be withheld on a pro rata basis among the Shares (including Options) to be acquired by Omnicare and Purchaser in the Offer and the Proposed Merger and (iii) if any portion of the Escrow Amount, plus any interest on the Escrow Amount, remains in the Escrow Account after payment of the Stockholder-Plaintiffs' attorneys' fees and expenses, and any expenses incurred in connection with the establishment of the Escrow Account, such excess amount will be distributed as follows: (i) any amount in excess of $11,000,000 will be distributed to Omnicare and (ii) after distribution to Omnicare in accordance with clause (i), if applicable, (1) 81.82% of any remaining amount will be distributed pro rata among all Shares (including Options) acquired by Omnicare and Purchaser in the Offer and the Proposed Merger and (2) 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 Fee Application Order to seek to reduce the amount of the fees and expenses to be awarded to the Stockholder-Plaintiffs' attorneys to a reasonable amount. On January 6, 2003, the Chancery Court entered the Order, which is consistent with the terms and provisions of the Letter Agreement. On January 6, 2003, Omnicare issued a press release with respect to the Letter Agreement. Also, on January 6, 2003, the Company filed an amendment to its Schedule 14D-9 with respect to the Letter Agreement and the Order. In addition, the Company disclosed that the Company's Board of Directors, by unanimous vote of those present, approved the Letter Agreement and resolved to continue to recommend that the Company's stockholders accept the Offer and tender their Shares pursuant to the Offer. According to the Company, the Company has been advised by each of its directors and executive officers that each such person intends to tender all Shares owned by such person in the Offer. We also have been advised by the Company that, as a group, all of the directors and executive officers of the Company own approximately 1,208,737 shares of Class A Common Stock and 4,810,806 shares of Class B Common Stock. 7 6. LEGAL PROCEEDINGS. The discussions set forth under Section 18 ('Legal Proceedings') of the Offer to Purchase and Section 11 ('Legal Proceedings') of the First Supplement are hereby amended and supplemented as follows: On December 27, 2002, the Stockholder-Plaintiffs filed a complaint (the 'Complaint') in the Chancery Court against Omnicare and Purchaser seeking an order (i) temporarily, preliminarily and permanently enjoining Omnicare and Purchaser from distributing $13,500,000 of the amount otherwise payable to stockholders of the Company in the Offer and the Proposed Merger and (ii) requiring that Omnicare and Purchaser deposit this sum in escrow until the Chancery Court determines the rights of the Stockholder-Plaintiffs and their attorneys to an allowance of fees and expenses in connection with Stockholder-Plaintiffs' action against the Company and its directors entitled 'In re NCS HealthCare Shareholders Litigation' (C.A. No. 19786). In the Complaint, the Stockholder-Plaintiffs argued, among other things, that (i) their litigation against the Company resulted in a benefit of approximately $102,000,000 to the Company's stockholders, for which the Stockholder-Plaintiffs and their attorneys are entitled to an allowance for reasonable attorneys' fees and expenses, (ii) it would be impossible, as a practical matter, for the Stockholder-Plaintiffs' attorneys to collect such fees and expenses from the Company's stockholders, unless an amount is set aside as requested and (iii) the Stockholder-Plaintiffs have no adequate remedy at law. On the same day, the Stockholder-Plaintiffs filed a Motion for Temporary Restraining Order (the 'Motion') with the Chancery Court seeking an order (i) temporarily restraining Omnicare and Purchaser from distributing $13,500,000 of the amount otherwise payable to stockholders of the Company in the Offer and the Proposed Merger pending a determination by the Chancery Court with respect to an application of the Stockholder-Plaintiffs and their attorneys for an allowance of attorneys' fees and reimbursement of expenses in connection with their action against the Company and its directors and (ii) requiring Omnicare and Purchaser to deposit this amount in an interest bearing account to be drawn upon only pursuant to an order of the Chancery Court. In support of the Motion, the Stockholder-Plaintiffs filed Plaintiffs' Memorandum of Law in Support of Motion for Temporary Restraining Order and an Affidavit of Joseph A. Rosenthal in Support of Application for a Temporary Restraining Order, setting forth the grounds for the Motion. On December 30, 2002, the Company, Boake A. Sells and Richard L. Osborne (collectively, the 'NCS Defendants') filed a motion to intervene as defendants (the 'Motion to Intervene') in the action filed by the Stockholder-Plaintiffs on December 27, 2002 and an answer to the allegations set forth in the Complaint. On the same day, counsel for the NCS Defendants submitted a letter (the 'Letter') to the Chancery Court opposing the Motion. On January 2, 2003, Omnicare and Purchaser submitted a response to the Stockholder-Plaintiffs' action and the Motion, as well as the Motion to Intervene and the Letter submitted by the NCS Defendants, to the Chancery Court. On the same day, the 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 Stockholder-Plaintiffs on December 27, 2002. Later in the day on January 2, 2003, the Chancery Court issued an order temporarily restraining and enjoining Omnicare and the Purchaser from paying $13,500,000 of the aggregate amount payable to holders of Shares (including Options) in the Offer and the Proposed Merger and ordering Omnicare and Purchaser to deposit the Escrow Amount in the Escrow Account pending the Fee Application Order. The Chancery Court further ordered that the entire Escrow Amount be withheld by proration among all Shares acquired by Omnicare and Purchaser in the Offer and the Proposed Merger. On January 5, 2003, Omnicare and the Company entered into the Letter Agreement. Pursuant to the Letter Agreement, Omnicare and the Company have agreed, among other things, that (i) Omnicare will contribute $4,500,000 of the Escrow Amount required by the Chancery Court to be deposited into the Escrow Account, (ii) the balance of the Escrow Amount, that is, $9,000,000, will be withheld on a pro rata basis among the Shares (including Options) to be acquired by Omnicare and Purchaser in the 8 Offer and the Proposed Merger and (iii) if any portion of the Escrow Amount, plus any interest on the Escrow Amount, remains in the Escrow Account after payment of the Stockholder-Plaintiffs' attorneys' fees and expenses and any expenses incurred in connection with the establishment of the Escrow Account, such excess amount will be distributed as follows: (i) any amount in excess of $11,000,000 will be distributed to Omnicare and (ii) after distribution to Omnicare in accordance with clause (i), if applicable, (1) 81.82% of any remaining amount will be distributed pro rata among all Shares (including Options) acquired by Omnicare and Purchaser in the Offer and the Proposed Merger and (2) 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 Fee Application Order to seek to reduce the amount of the fees and expenses to be awarded to the Stockholder-Plaintiffs' attorneys to a reasonable amount. On January 6, 2003, the Chancery Court entered the Order, which modifies the Chancery Court's January 2, 2003 order to reflect the fact that Omnicare had agreed to contribute $4,500,000 of the Escrow Amount and, therefore, only $9,000,000, in the aggregate, will be required to be withheld from holders of Shares (including Options) on a pro rata basis. 7. MISCELLANEOUS. The discussions set forth in Section 19 ('Miscellaneous') of the Offer to Purchase and Section 12 ('Miscellaneous') of the First Supplement are hereby amended and restated in its entirety as follows: No person has been authorized to give any information or make any representation on behalf of Purchaser or Omnicare not contained in this Second Supplement or in the related revised Letter of Transmittal and, if given or made, such information or representation must not be relied upon as having been authorized. We have filed with the SEC a Tender Offer Statement on Schedule TO and amendments thereto, together with exhibits, pursuant to the Exchange Act Rule 14d-3 furnishing certain additional information with respect to the Offer. The Schedule TO and amendments thereto, including exhibits, may be examined and copies may be obtained from the offices of the SEC in the manner set forth in Section 14 ('Certain Information Concerning the Company -- Available Information') of the Offer to Purchase. THIS SECOND SUPPLEMENT SHOULD BE READ IN CONJUNCTION WITH THE OFFER TO PURCHASE AND THE FIRST SUPPLEMENT. EXCEPT AS OTHERWISE SET FORTH IN THIS SECOND SUPPLEMENT AND THE REVISED (GREEN) LETTER OF TRANSMITTAL, THE TERMS AND CONDITIONS PREVIOUSLY SET FORTH IN THE OFFER TO PURCHASE, THE FIRST SUPPLEMENT AND RELATED ORIGINAL (BLUE) OR REVISED (YELLOW) LETTERS OF TRANSMITTAL REMAIN APPLICABLE IN ALL RESPECTS TO THE OFFER. Neither the delivery of the Offer to Purchase, the First Supplement, this Second Supplement nor any purchase pursuant to the Offer shall, under any circumstances, create any implication that there has been no change in the affairs of Omnicare, Purchaser or the Company or any of their respective subsidiaries since the date as of which information is furnished or the date of this Second Supplement. NCS ACQUISITION CORP. January 8, 2003 9 [THIS PAGE INTENTIONALLY LEFT BLANK] Manually signed facsimile copies of the Letter of Transmittal will be accepted. The Letter of Transmittal and certificates for Shares and any other required documents should be sent to the Depositary at one of the addresses set forth below: The Depositary for the Offer is: THE BANK OF NEW YORK By Mail: By Facsimile By Hand or Overnight Courier: (for Eligible Institutions only): Tender & Exchange Department (212) 815-6433 Tender & Exchange Department P.O. Box 11248 101 Barclay Street Church Street Station For Confirm Only Telephone: Receive and Deliver Window New York, NY 10286-1248 (212) 815-6212 New York, NY 10286
Any questions or requests for assistance may be directed to the Information Agent or the Dealer Manager at their respective addresses or telephone numbers set forth below. Additional copies of the Offer to Purchase, the First Supplement, this Second Supplement, the revised (green) Letter of Transmittal and the revised (yellow) Notice of Guaranteed Delivery may be obtained from the Information Agent at its address and telephone numbers set forth below. Holders of Shares may also contact their broker, dealer, commercial bank or trust company or other nominee for assistance concerning the Offer. The Information Agent for the Offer is: [Innisfree Logo] 501 Madison Avenue New York, New York 10022 Stockholders Call Toll-Free: (888) 750-5834 or Banks and Brokers Call Collect: (212) 750-5833 The Dealer Manager for the Offer is: MERRILL LYNCH & CO. 4 World Financial Center New York, New York 10080 (866) 276-1462 (Call Toll Free) EX-99 4 ex99-a1zzz.txt EXHIBIT (A)(1)(ZZZ) Exhibit (a)(1)(ZZZ) Letter of Transmittal To Tender Shares of Class A Common Stock and To Tender Shares of Class B Common Stock of NCS HEALTHCARE, INC. Pursuant to the Offer To Purchase Dated August 8, 2002, the First Supplement thereto Dated December 23, 2002, and the Second Supplement thereto Dated January 8, 2003, by NCS ACQUISITION CORP., a wholly-owned subsidiary of OMNICARE, INC. - -------------------------------------------------------------------------------- THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, JANUARY 14, 2003, UNLESS THE OFFER IS EXTENDED. - -------------------------------------------------------------------------------- The Depositary for the Offer is: THE BANK OF NEW YORK By Mail: By Facsimile By Hand or Overnight Courier: (for Eligible Institutions only): Tender & Exchange Department (212) 815-6433 Tender & Exchange Department P.O. Box 11248 101 Barclay Street Church Street Station For Confirm Only Telephone: Receive and Deliver Window New York, NY 10286-1248 (212) 815-6212 New York, NY 10286
DELIVERY OF THIS REVISED LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE INSTRUCTIONS ACCOMPANYING THIS REVISED LETTER OF TRANSMITTAL SHOULD BE READ CAREFULLY BEFORE THIS REVISED LETTER OF TRANSMITTAL IS COMPLETED. This revised (green) Letter of Transmittal, the revised (yellow) Letter of Transmittal previously circulated or the original (blue) Letter of Transmittal previously circulated is to be used if certificates are to be forwarded herewith or, unless an Agent's Message (as defined in the Offer to Purchase) is utilized, if delivery of Shares (as defined below) is to be made by book-entry transfer to the Depositary's account at The Depository Trust Company (the 'Book-Entry Transfer Facility') pursuant to the procedures set forth in 'The Offer -- Procedure for Tendering Shares' of the Offer to Purchase.
- ---------------------------------------------------------------------------------------------------------------- DESCRIPTION OF SHARES TENDERED - ---------------------------------------------------------------------------------------------------------------- NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) (PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) AND SHARES SHARES OF CLASS A COMMON STOCK TENDERED TENDERED APPEAR(S) ON SHARE CERTIFICATE(S)) (ATTACH ADDITIONAL LIST IF NECESSARY) - ---------------------------------------------------------------------------------------------------------------- TOTAL NUMBER OF SHARES NUMBER OF CERTIFICATE REPRESENTED BY SHARES NUMBER(S)* CERTIFICATE(S)* TENDERED** - ---------------------------------------------------------------------------------------------------------------- --------------------------------------------------- --------------------------------------------------- --------------------------------------------------- --------------------------------------------------- --------------------------------------------------- TOTAL SHARES - ---------------------------------------------------------------------------------------------------------------- NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) (PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) AND SHARES SHARES OF CLASS B COMMON STOCK TENDERED TENDERED APPEAR(S) ON SHARE CERTIFICATE(S)) (ATTACH ADDITIONAL LIST IF NECESSARY) - ---------------------------------------------------------------------------------------------------------------- TOTAL NUMBER OF SHARES NUMBER OF CERTIFICATE REPRESENTED BY SHARES NUMBER(S)* CERTIFICATE(S)* TENDERED** --------------------------------------------------- --------------------------------------------------- --------------------------------------------------- --------------------------------------------------- --------------------------------------------------- TOTAL SHARES - ---------------------------------------------------------------------------------------------------------------- * Need not be completed by stockholders tendering by book-entry transfer. ** Unless otherwise indicated, it will be assumed that all Shares represented by any certificates delivered to the Depositary are being tendered. See Instruction 4. IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE BEEN LOST OR DESTROYED SEE INSTRUCTION 9. - ----------------------------------------------------------------------------------------------------------------
Holders of outstanding shares of class A common stock, par value $0.01 per share ('Class A Common Stock'), and holders of outstanding shares of class B common stock, par value $0.01 per share ('Class B Common Stock' and, together with Class A Common Stock, the 'Shares'), of NCS HealthCare, Inc., a Delaware corporation (the 'Company'), whose certificates for such Shares (the 'Share Certificates') are not immediately available or who cannot deliver their Share Certificates and all other required documents to the Depositary on or prior to the Expiration Date (as defined in the Second Supplement), or who cannot complete the procedure for book-entry transfer on a timely basis, must tender their Shares according to the guaranteed delivery procedure set forth in Section 4 ('Procedure for Tendering Shares -- Guaranteed Delivery') of the Offer to Purchase. See Instruction 2. Delivery of documents to the Book-Entry Transfer Facility does not constitute delivery to the Depositary. LOST SHARE CERTIFICATES [ ] I HAVE LOST MY SHARE CERTIFICATE(S) THAT REPRESENTED _______ SHARES AND REQUIRE ASSISTANCE IN OBTAINING A REPLACEMENT SHARE CERTIFICATE(S). I UNDERSTAND THAT I MUST CONTACT THE DEPOSITARY AND/OR THE COMPANY TO OBTAIN INSTRUCTIONS FOR REPLACING LOST SHARE CERTIFICATES. SEE INSTRUCTION 9. [ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER): Name of Tendering Institution __________________________________________________ Account Number _________________________________________________________________ Transaction Code Number ________________________________________________________ [ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING: Name(s) of Tendering Stockholder(s) ____________________________________________ Date of Execution of Notice of Guaranteed Delivery _____________________________ Name of Institution which Guaranteed Delivery __________________________________ If delivery is by book-entry transfer: Name of Tendering Institution __________________________________________________ Account Number _________________________________________________________________ Transaction Code Number ________________________________________________________ NOTE: SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY. Ladies and Gentlemen: The undersigned hereby tenders to NCS Acquisition Corp., a Delaware corporation ('Purchaser') and a wholly-owned subsidiary of Omnicare, Inc., a Delaware corporation ('Omnicare'), (1) the above-described shares of Class A Common Stock, and (2) the above-described shares of Class B Common Stock, pursuant to Purchaser's offer to purchase all of the outstanding Shares at $5.50 per Share (the 'Offer Price'), 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 'First Supplement') and the second Supplement to the Offer to Purchase, dated January 8, 2003 (the 'Second Supplement'), receipt of which is hereby acknowledged, and in this revised Letter of Transmittal (which together, as each may be amended, supplemented or otherwise modified from time to time, constitute the 'Offer'). We reserve the right to transfer or assign, in whole or from time to time in part, to one or more of our affiliates the right to purchase Shares tendered pursuant to the Offer, but any such transfer or assignment will not relieve us of our obligations under the Offer or prejudice your rights to receive payment for Shares validly tendered and accepted for payment. AS DESCRIBED HEREIN AND IN THE SECOND SUPPLEMENT, PURSUANT TO AN ORDER (THE 'ORDER') OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE (THE 'CHANCERY COURT') DATED JANUARY 6, 2003, AND THE LETTER AGREEMENT (THE 'LETTER AGREEMENT') AMONG OMNICARE, THE PURCHASER AND THE COMPANY, DATED JANUARY 5, 2003, THE OFFER PRICE SHALL BE DISTRIBUTED BY OMNICARE AND PURCHASER AS FOLLOWS: (i) HOLDERS OF SHARES WILL RECEIVE $5.149 PER SHARE IN CASH IN THE OFFER AND THE PROPOSED MERGER (AS DEFINED IN THE OFFER TO PURCHASE), AS APPLICABLE, AND (ii) TO FUND THE COMPANY STOCKHOLDERS' OBLIGATION TO PAY THE STOCKHOLDER-PLAINTIFFS' (AS DEFINED IN THE SECOND SUPPLEMENT) ATTORNEYS' FEES AND EXPENSES, OMNICARE AND PURCHASER ARE REQUIRED TO WITHHOLD FROM THE OFFER PRICE, AND DEPOSIT INTO AN ESCROW ACCOUNT, $0.351 IN CASH FOR EACH SHARE ACQUIRED BY OMNICARE AND PURCHASER IN THE OFFER AND THE PROPOSED MERGER (SUBJECT TO THE SUBSEQUENT DISTRIBUTION OF ANY EXCESS FUNDS IN SUCH ESCROW ACCOUNT (PLUS ANY INTEREST ON SUCH FUNDS) FOLLOWING PAYMENT OF THE STOCKHOLDER-PLAINTIFFS' ATTORNEYS' FEES AND EXPENSES RELATING TO THE ESTABLISHMENT OF THE ESCROW ACCOUNT AS DESCRIBED IN THE SECOND SUPPLEMENT). Upon the terms and subject to the conditions of the Offer and effective upon acceptance for payment of and payment for the Shares, the undersigned hereby sells, assigns and transfers to, or upon the order of, Purchaser all right, title and interest in and to all of the Shares that are being tendered hereby (and any and all dividends, distributions, rights, other Shares or other securities issued or issuable in respect thereof on or after the date hereof (collectively, a 'Distribution')) and appoints the Depositary the true and lawful agent and attorney-in-fact of the undersigned with respect to such Shares (and any Distribution), with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to (i) deliver certificates for such Shares (and any Distribution), or transfer ownership of such Shares (and any Distribution) on the account books maintained by the Book-Entry Transfer Facility, together, in any such case, with all accompanying evidences of transfer and authenticity, to or upon the order of Purchaser, (ii) present such Shares (and any Distribution) for transfer on the books of the Company and (iii) receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares (and any Distribution), all in accordance with the terms of the Offer. The undersigned hereby irrevocably appoints designees of Purchaser as the attorneys and proxies of the undersigned, each with full power of substitution, to exercise all voting and other rights of the undersigned in such manner as each such attorney and proxy or his substitute shall in his sole discretion deem proper, with respect to all of the Shares tendered hereby which have been accepted for payment by Purchaser prior to the time of any vote or other action (and any Distribution), at any meeting of stockholders of the Company (whether annual or special and whether or not an adjourned meeting), by written consent or otherwise. This proxy is irrevocable and is granted in consideration of, and is effective upon, the acceptance for payment of such Shares by Purchaser in accordance with the terms of the Offer. Such acceptance for payment shall revoke any other proxy or written consent granted by the undersigned at any time with respect to such Shares (and any Distribution), and no subsequent proxies will be given or written consents will be executed by the undersigned (and if given or executed, will not be deemed to be effective). The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Shares tendered hereby (and any Distribution) and that when the same are accepted for payment by Purchaser, Purchaser will acquire good and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claims. The undersigned will, upon request, execute and deliver any additional documents deemed by the Depositary or Purchaser to be necessary or desirable to complete the sale, assignment and transfer of the Shares tendered hereby (and any Distribution). All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned, and any obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. Except as stated in the Offer, this tender is irrevocable. The undersigned understands that tenders of Shares pursuant to any one of the procedures described in Section 4 ('Procedure for Tendering Shares') of the Offer to Purchase and in the instructions hereto will constitute an agreement between the undersigned and Purchaser upon the terms and subject to the conditions of the Offer. Unless otherwise indicated under 'Special Payment Instructions,' please issue the check for the purchase price of any Share Certificates, and return any Shares not tendered or not purchased, in the name(s) of the undersigned (and, in the case of Shares tendered by book-entry transfer, by credit to the account at the Book-Entry Transfer Facility). Similarly, unless otherwise indicated under 'Special Delivery Instructions,' please mail the check for the purchase price of any Share Certificates purchased and any certificates for Shares not tendered or not purchased (and accompanying documents, as appropriate) to the undersigned at the address shown below the undersigned's signature(s). In the event that both 'Special Payment Instructions' and 'Special Delivery Instructions' are completed, please issue the check for the purchase price of any Share Certificates purchased and return any Shares not tendered or not purchased in the name(s) of, and mail said check and any certificates to, the person(s) so indicated. The undersigned recognizes that Purchaser has no obligation, pursuant to the 'Special Payment Instructions,' to transfer any Shares from the name of the registered holder(s) thereof if Purchaser does not accept for payment any of the Shares so tendered. - ------------------------------------------------ ------------------------------------------------------- SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1, 5, 6 AND 7) (SEE INSTRUCTIONS 1, 5, 6 AND 7) To be completed ONLY if the check for To be completed ONLY if the check for the the purchase price of Share Certificates purchase price of Share Certificates purchased (less the amount of any federal purchased (less the amount of any federal income and backup withholding tax required income and backup withholding tax required to be withheld) or certificates for Shares to be withheld) or certificates for Shares not tendered or not purchased are to be not tendered or not purchased are to be issued in the name of someone other than sent to someone other than the undersigned. the undersigned. Mail: Check [ ] [ ] Certificates to: Mail: Check [ ] [ ] Certificates to: Name: ____________________________________ Name: ____________________________________ (Please Print) Address: _________________________________ Address: _________________________________ __________________________________________ __________________________________________ Zip Code Zip Code __________________________________________ __________________________________________ (Taxpayer Identification No.) (Taxpayer Identification No.) (See Substitute Form W-9) (See Substitute Form W-9) - ------------------------------------------------ -------------------------------------------------------
- -------------------------------------------------------------------------------- IMPORTANT -- SIGN HERE (ALSO COMPLETE SUBSTITUTE FORM W-9 INCLUDED HEREIN) _______________________________________________________________________ _______________________________________________________________________ (SIGNATURE(S) OF OWNERS) Dated ____________________________ Name(s) _______________________________________________________________ _______________________________________________________________________ (PLEASE PRINT) Capacity (full title) _________________________________________________ Address _______________________________________________________________ _______________________________________________________________________ (INCLUDE ZIP CODE) Area Code and Telephone Number ________________________________________ (Must be signed by registered holder(s) exactly as name(s) appear(s) on Share Certificate(s) or on a security position listing or by person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, agent, officer of a corporation or other person acting in a fiduciary or representative capacity, please provide the necessary information above and see Instruction 5.) GUARANTEE OF SIGNATURE(S) (SEE INSTRUCTIONS 1 AND 5) Authorized Signature __________________________________________________ Name___________________________________________________________________ Title _________________________________________________________________ (PLEASE PRINT) Name of Firm __________________________________________________________ Address _______________________________________________________________ (INCLUDE ZIP CODE) Area Code and Telephone Number ________________________________________ Dated ______________________________ FOR USE BY FINANCIAL INSTITUTIONS ONLY FINANCIAL INSTITUTIONS: PLACE MEDALLION GUARANTEE IN SPACE ABOVE - -------------------------------------------------------------------------------- INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER 1. Guarantee of Signatures. Except as otherwise provided below, all signatures on this revised Letter of Transmittal must be guaranteed by a financial institution (including most banks, savings and loan associations and brokerage houses) that is a member of a recognized Medallion Program approved by The Securities Transfer Association, Inc. or any other 'eligible guarantor institution' (as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended) (each an 'Eligible Institution'). Signatures on this revised Letter of Transmittal need not be guaranteed (i) if this revised Letter of Transmittal is signed by the registered holder(s) of the Shares (which term, for purposes of this document, shall include any participant in the Book-Entry Transfer Facility whose name appears on a security position listing as the owner of Shares) tendered herewith and such holder(s) have not completed the instruction entitled 'Special Payment Instructions' on this revised Letter of Transmittal or (ii) if such Shares are tendered for the account of an Eligible Institution. See Instruction 5. 2. Delivery of Letter of Transmittal and Shares. This revised Letter of Transmittal is to be used if Share Certificates are to be forwarded herewith or, unless an Agent's Message is utilized, if deliveries are to be made by book-entry transfer pursuant to the procedures set forth in Section 4 ('Procedure for Tendering Shares') of the Offer to Purchase. Share Certificates for all physically delivered Shares, or a confirmation of a book-entry transfer into the Depositary's account at the Book-Entry Transfer Facility of all Shares delivered electronically, as well as a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile thereof) and any other documents required by this revised Letter of Transmittal, or an Agent's Message in the case of a book-entry transfer, must be received by the Depositary at one of its addresses set forth on the front page of this revised Letter of Transmittal by the Expiration Date. Stockholders whose Share Certificates are not immediately available, who cannot deliver their Share Certificates and all other required documents to the Depositary prior to the Expiration Date or who cannot complete the procedure for delivery by book-entry transfer on a timely basis, may tender their Shares pursuant to the guaranteed delivery procedure described in Section 4 ('Procedure for Tendering Shares') of the Offer to Purchase. Pursuant to such procedure: (a) such tender must be made by or through an Eligible Institution; (b) a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by Purchaser, must be received by the Depositary prior to the Expiration Date; and (c) Share Certificates for all tendered Shares, in proper form for tender, or a confirmation of a book-entry transfer into the Depositary's account at the Book-Entry Transfer Facility of all Shares delivered electronically, as well as a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile thereof), and any other documents required by this revised Letter of Transmittal, must be received by the Depositary within three business days of the date of execution of such Notice of Guaranteed Delivery, as provided in Section 4 ('Procedure for Tendering Shares') of the Offer to Purchase. THE METHOD OF DELIVERY OF SHARES AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER. IF CERTIFICATES FOR SHARES ARE SENT BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. NO ALTERNATIVE, CONDITIONAL OR CONTINGENT TENDERS WILL BE ACCEPTED, AND NO FRACTIONAL SHARES WILL BE PURCHASED. BY EXECUTING THIS REVISED LETTER OF TRANSMITTAL, THE TENDERING STOCKHOLDER WAIVES ANY RIGHT TO RECEIVE ANY NOTICE OF THE ACCEPTANCE FOR PAYMENT OF THE SHARES. 3. Inadequate Space. If the space provided herein is inadequate, the Share Certificate numbers, the number of Shares evidenced by such Share Certificates and the number of Shares tendered should be listed on a separate signed schedule and attached hereto. 4. Partial Tenders (not applicable to stockholders who tender by book-entry transfer). If fewer than all the Shares represented by any certificate delivered to the Depositary are to be tendered, fill in the number of Shares which are to be tendered in the box entitled 'Number of Shares Tendered.' In such case, a new certificate for the remainder of the Shares represented by the old certificate will be sent to the person(s) signing this revised Letter of Transmittal, unless otherwise provided in the appropriate box on this revised Letter of Transmittal, as promptly as practicable following the expiration or termination of the Offer. All Shares represented by certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated. 5. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If this revised Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the certificates without alteration, enlargement or any change whatsoever. If any of the Shares tendered hereby are held of record by two or more persons, all such persons must sign this revised Letter of Transmittal. If any of the Shares tendered hereby are registered in different names on different certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registrations of certificates. If this revised Letter of Transmittal is signed by the registered holder(s) of the Shares tendered hereby, no endorsements of certificates or separate stock powers are required unless payment of the purchase price is to be made, or Shares not tendered or not purchased are to be returned, in the name of any person other than the registered holder(s). Signatures on any such certificates or stock powers must be guaranteed by an Eligible Institution. If this revised Letter of Transmittal is signed by a person other than the registered holder(s) of the Shares tendered hereby, certificates must be endorsed or accompanied by appropriate stock powers, in either case, signed exactly as the name(s) of the registered holder(s) appear(s) on the certificates for such Shares. Signature(s) on any such certificates or stock powers must be guaranteed by an Eligible Institution. If this revised Letter of Transmittal or any certificate or stock power is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to Purchaser of the authority of such person so to act must be submitted. 6. Stock Transfer Taxes. Purchaser will pay any stock transfer taxes with respect to the sale and transfer of any Shares to it or its order pursuant to the Offer. If, however, payment of the purchase price is to be made to, or Shares not tendered or not purchased are to be returned in the name of, any person other than the registered holder(s), or if a transfer tax is imposed for any reason other than the sale or transfer of Shares to Purchaser pursuant to the Offer, then the amount of any stock transfer taxes (whether imposed on the registered holder(s), such other person or otherwise) will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes, or exemption therefrom, is submitted herewith. 7. Special Payment and Delivery Instructions. If the check for the purchase price of any Shares purchased is to be issued, or any Shares not tendered or not purchased are to be returned, in the name of a person other than the person(s) signing this revised Letter of Transmittal or if the check or any certificates for Shares not tendered or not purchased are to be mailed to someone other than the person(s) signing this revised Letter of Transmittal or to the person(s) signing this revised Letter of Transmittal at an address other than that shown above, the appropriate boxes on this revised Letter of Transmittal should be completed. Stockholders tendering Shares by book-entry transfer may request that Shares not purchased be credited to such account at the Book-Entry Transfer Facility as such stockholder may designate under 'Special Payment Instructions.' If no such instructions are given, any such Shares not purchased will be returned by crediting the account at the Book-Entry Transfer Facility designated above. 8. Substitute Form W-9. Under U.S. federal income tax law, the Depositary may be required to withhold 30% of any payments made to certain stockholders pursuant to the Offer. To avoid such backup withholding, each tendering stockholder must provide the Depositary with such stockholder's correct taxpayer identification number and certify that such stockholder is not subject to such backup withholding by completing the Substitute Form W-9. In general, if a stockholder is an individual, the taxpayer identification number is the Social Security number of such individual. If the Depositary is not provided with the correct taxpayer identification number, the stockholder may be subject to a $50 penalty imposed by the Internal Revenue Service. For further information concerning backup withholding and instructions for completing the Substitute Form W-9 (including how to obtain a taxpayer identification number if you do not have one and how to complete the Substitute Form W-9 if Shares are held in more than one name), consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. Certain stockholders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. Exempt stockholders should indicate their exempt status on Substitute Form W-9. To satisfy the Depositary that a foreign person qualifies as an exempt recipient, such stockholder must submit a properly completed IRS Form W-8BEN, signed under penalties of perjury, attesting to that person's exempt status. Such Forms can be obtained from the Depositary. Failure to complete the Substitute Form W-9 will not, by itself, cause Shares to be deemed invalidly tendered, but may require the Depositary to withhold 30% of any payments made pursuant to the Offer. Backup withholding is not an additional federal income tax. Rather, the federal income tax liability of a person subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained provided that the required information is furnished to the Internal Revenue Service. NOTE: FAILURE TO COMPLETE AND RETURN THE SUBSTITUTE FORM W-9 MAY RESULT IN BACKUP WITHHOLDING AT A RATE OF 30% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED 'GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9' FOR ADDITIONAL DETAILS. 9. Mutilated, Lost, Stolen or Destroyed Certificates. Any holder of a certificate(s) which represented Shares whose certificate(s) has been mutilated, lost, stolen, or destroyed should (i) complete this revised Letter of Transmittal and check the appropriate box above and (ii) contact the Depositary immediately by calling (800) 507-9357. The Depositary will provide such holder with all necessary forms and instructions to replace any mutilated, lost, stolen or destroyed certificates. The holder may also be required to give the Company a bond as indemnity against any claim that may be made against it with respect to the certificate(s) alleged to have been mutilated, lost, stolen, or destroyed. However, there can be no assurances that such mutilated, lost, stolen or destroyed certificates will be replaced prior to the expiration date of the Offer. 10. Waiver of Conditions. The Conditions of the Offer may be waived, in whole or in part, by Purchaser, in its reasonable discretion, at any time and from time to time, in the case of any shares tendered, subject to the terms and conditions contained in the Agreement and Plan of Merger dated as of December 17, 2002, by and among Omnicare, Purchaser and the Company. 11. Requests for Assistance or Additional Copies. Questions or requests for assistance may be directed to the Information Agent or the Dealer Manager at their respective addresses and telephone numbers set forth below. Additional copies of the Offer to Purchase, the First Supplement, the Second Supplement, this revised Letter of Transmittal and the revised Notice of Guaranteed Delivery may be obtained from the Information Agent at its address and telephone numbers set forth below. Holders of Shares may also contact their broker, dealer, commercial bank or trust company or other nominee for assistance concerning the Offer. 12. Escrow Account. As of January 7, 2003, there were 25,628,392 Shares outstanding on a fully diluted basis (including 'in-the-money' options to acquire Shares ('Options') and excluding Shares owned by Omnicare and its affiliates). Pursuant to the Order and the Letter Agreement, upon acceptance by Purchaser of Shares tendered in the Offer, holders of Shares will receive $5.149 per Share in cash, without interest and less required withholding taxes, and Omnicare and Purchaser will deposit the remaining $0.351 of the Offer Price per Share in cash into an escrow account pending a further order of the Chancery Court with respect to an application by the Stockholder-Plaintiffs for attorneys' fees and expenses in connection with the Stockholder-Plaintiffs' action against the Company and its directors. Any amount remaining in the escrow account, plus interest on any amount in the escrow account, following the Chancery Court's further order and any appeal therefrom will be distributed to holders of Shares (including Options) and Omnicare as described in the Second Supplement. See Section 1 ('Amended Terms of the Offer; Expiration Date') of the Second Supplement. IMPORTANT: THIS REVISED (GREEN) LETTER OF TRANSMITTAL, THE REVISED (YELLOW) LETTER OF TRANSMITTAL PREVIOUSLY CIRCULATED OR THE ORIGINAL (BLUE) LETTER OF TRANSMITTAL PREVIOUSLY CIRCULATED (OR A MANUALLY SIGNED FACSIMILE HEREOF) TOGETHER WITH ANY SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY TRANSFER, AN AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER CERTIFICATES FOR TENDERED SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION DATE, OR THE TENDERING SHAREHOLDER MUST COMPLY WITH THE PROCEDURES FOR GUARANTEED DELIVERY. - ----------------------------------------------------------------------------------------------------------------------------- PAYER'S NAME: THE BANK OF NEW YORK, AS DEPOSITARY - ----------------------------------------------------------------------------------------------------------------------------- PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND ____________________________ SUBSTITUTE CERTIFY BY SIGNING AND DATING BELOW Social Security Number FORM W-9 OR DEPARTMENT OF THE TREASURY ____________________________ INTERNAL REVENUE SERVICE Employer Identification Number(s) --------------------------------------------------------------------------------------------- PART 2 -- EXEMPT FROM BACKUP WITHHOLDING [ ] PART 4 -- Awaiting TIN [ ] --------------------------------------------------------------------------------------------- PART 3 -- Certification (Under Penalties of Perjury), I certify that: (1) The number shown on this form is my current taxpayer identification number (or I am waiting for a number to be issued to me), (2) I am not subject to backup withholding because (A) I am exempt from backup withholding, (B) I have not been notified by the Internal Revenue Service (the 'IRS') that I am subject to backup withholding as a result of failure to report all interest or PAYER'S REQUEST FOR dividends, or (C) the IRS has notified me that I am no longer subject to backup TAXPAYER IDENTIFICATION withholding and NUMBER ('TIN') AND (3) I am a U.S. person (including a U.S. resident alien). CERTIFICATION --------------------------------------------------------------------------------------------- CERTIFICATION INSTRUCTIONS -- You must cross out item (2) in Part 3 above if you have been notified by the IRS that you are subject to backup withholding because of underreporting interest or dividends on your tax return. However, if after being notified by the IRS that you are subject to backup withholding you receive another notification from the IRS stating that you are no longer subject to backup withholding, do not cross out item (2). SIGNATURE ________________________________________________ DATE ________________________ NAME ___________________________________________________________________________________ ADDRESS ________________________________________________________________________________ CITY _________________________________________ STATE _____________ ZIP CODE ____________ - -----------------------------------------------------------------------------------------------------------------------------
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECK THE BOX IN PART 4 OF SUBSTITUTE FORM W-9 - -------------------------------------------------------------------------------- CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number, a portion of all reportable payments made to me will be withheld. Signature ___________________________________________ Date _________________ - -------------------------------------------------------------------------------- NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING AT A RATE OF 30% ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. Any questions or requests for assistance may be directed to the Information Agent or the Dealer Manager at their respective addresses or telephone numbers set forth below. Additional copies of the Offer to Purchase, the First Supplement, the Second Supplement, this revised Letter of Transmittal and the revised Notice of Guaranteed Delivery may be obtained from the Information Agent at its address and telephone numbers set forth below. Holders of Shares may also contact their broker, dealer, commercial bank or trust company or other nominee for assistance concerning the Offer. The Information Agent for the Offer is: The Information Agent for the Offer is: [Innisfree Logo] 501 Madison Avenue New York, New York 10022 Stockholders Call Toll-Free: (888) 750-5834 Banks and Brokers Call Collect: (212) 750-5833 The Dealer Manager for the Offer is: MERRILL LYNCH & CO. 4 World Financial Center New York, New York 10080 (866) 276-1462 (Call Toll Free) January 8, 2003 EX-99 5 ex99-a1aaaa.txt EXHIBIT (A)(1)(AAAA) Exhibit (a)(1)(AAAA) Notice of Guaranteed Delivery for Tender of Shares of Class A Common Stock and Tender of Shares of Class B Common Stock of NCS HEALTHCARE, INC. to NCS ACQUISITION CORP., a wholly-owned subsidiary of OMNICARE, INC. (Not to be Used for Signature Guarantees) THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, JANUARY 14, 2003, UNLESS THE OFFER IS EXTENDED. This revised (yellow) Notice of Guaranteed Delivery, the revised (grey) Notice of Guaranteed Delivery previously circulated or the original (pink) Notice of Guaranteed Delivery previously circulated, or a form substantially equivalent hereto, must be used to accept the Offer (as defined below) if certificates evidencing shares of class A common stock, par value $0.01 per share ('Class A Common Stock'), or class B common stock, par value $0.01 per share ('Class B Common Stock' and, together with Class A Common Stock, the 'Shares'), of NCS HealthCare, Inc., a Delaware corporation, are not immediately available, or if the procedure for book-entry transfer cannot be completed on a timely basis or time will not permit all required documents to reach The Bank of New York (the 'Depositary') on or prior to the Expiration Date (as defined in the Second Supplement (as defined below)). This Notice of Guaranteed Delivery may be delivered by hand or facsimile transmission or mail to the Depositary. See Section 4 ('Procedure for Tendering Shares') of the Offer to Purchase. The Depositary for the Offer is: THE BANK OF NEW YORK By Mail: By Facsimile By Hand or Overnight Courier: (for Eligible Institutions only): Tender & Exchange Department (212) 815-6433 Tender & Exchange Department P.O. Box 11248 101 Barclay Street Church Street Station For Confirm Only Telephone: Receive and Deliver Window New York, NY 10286-1248 (212) 815-6212 New York, NY 10286
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS LISTED ABOVE, DOES NOT CONSTITUTE A VALID DELIVERY. THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN 'ELIGIBLE GUARANTOR INSTITUTION' UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF TRANSMITTAL. THE ELIGIBLE INSTITUTION THAT COMPLETES THIS FORM MUST COMMUNICATE THE GUARANTEE TO THE DEPOSITARY AND MUST DELIVER THE LETTER OF TRANSMITTAL AND CERTIFICATES FOR SHARES TO THE DEPOSITARY WITHIN THE PERIOD SHOWN HEREIN. FAILURE TO DO SO COULD RESULT IN A FINANCIAL LOSS TO SUCH ELIGIBLE INSTITUTION. Ladies and Gentlemen: The undersigned hereby tenders to NCS Acquisition Corp., a Delaware corporation ('Purchaser') and a wholly-owned subsidiary of Omnicare, Inc., a Delaware corporation ('Omnicare'), 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 'First Supplement') and the second Supplement to the Offer to Purchase, dated January 8, 2003 (the 'Second Supplement'), and the related revised Letter of Transmittal (which together, as amended, supplemented or otherwise modified from time to time, constitute the 'Offer'), receipt of which is hereby acknowledged, the number of shares set forth below of Class A Common Stock and/or the number of shares set forth below of Class B Common Stock pursuant to the guaranteed delivery procedure set forth in Section 4 ('Procedure for Tendering Shares') of the Offer to Purchase. - ---------------------------------------- -------------------------------- Number of Shares of Class A Common Stock Name(s) (Please Print) of Record tendered Holder(s) - ---------------------------------------- -------------------------------- Class A Common Stock Certificate Numbers Address(es) (if available) - ---------------------------------------- -------------------------------- Number of Shares of Class B Common Stock (Zip Code) tendered - ---------------------------------------- -------------------------------- Class B Common Stock Certificate Numbers (Area Code and Telephone Number) (if available) - ---------------------------------------- -------------------------------- [ ] Check here if Shares will be tendered Signature by book-entry transfer - ---------------------------------------- -------------------------------- Account Number Date
2 THE GUARANTEE BELOW MUST BE COMPLETED GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEES) The undersigned, a firm which is a bank, broker, dealer, credit union, savings association or other entity which is a member in good standing of a recognized Medallion Program approved by the Securities Transfer Association, Inc. or any other 'eligible guarantor institution' (as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended), guarantees (a) that the above named person(s) 'own(s)' the Shares tendered hereby within the meaning of Rule 14e-4 under the Securities Exchange Act of 1934, (b) that such tender of Shares complies with Rule 14e-4 and (c) delivery to the Depositary of the Shares tendered hereby, in proper form of transfer, or a book-entry confirmation, together with a properly completed and duly executed Letter of Transmittal (or a manually signed facsimile thereof) with any required signature guarantees, or an Agent's Message (as defined in the Offer to Purchase) in the case of a book-entry delivery, and any other required documents within three business days of the date hereof. - -------------------------------------------------------------------------------- (Name of Firm) - -------------------------------------------------------------------------------- (Authorized Signature) - -------------------------------------------------------------------------------- (Name) - -------------------------------------------------------------------------------- (Address) - -------------------------------------------------------------------------------- (Zip Code) - -------------------------------------------------------------------------------- (Area Code and Telephone Number) DO NOT SEND SHARE CERTIFICATES WITH THIS NOTICE OF GUARANTEED DELIVERY. SHARE CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL. Dated: ____________________________________ 3 EX-99 6 ex99-a1bbbb.txt EXHIBIT (A)(1)(BBBB) Exhibit (a)(1)(BBBB) [Logo Merrill Lynch] 4 World Financial Center New York, New York 10080 (866) 276-1462 (call toll free) Offer to Purchase for Cash All Outstanding Shares of Class A Common Stock and Class B Common Stock of NCS HEALTHCARE, INC. at $5.50 NET PER SHARE by NCS ACQUISITION CORP., a wholly-owned subsidiary of OMNICARE, INC. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, JANUARY 14, 2003, UNLESS THE OFFER IS EXTENDED. January 8, 2003 To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: We have been engaged by NCS Acquisition Corp., a Delaware corporation ('Purchaser') and a wholly-owned subsidiary of Omnicare, Inc., a Delaware corporation ('Omnicare'), to act as Dealer Manager in connection with the offer being made by Omnicare, through Purchaser, to purchase all of the issued and outstanding shares of class A common stock, par value $0.01 per share ('Class A Common Stock'), and all of the issued and outstanding shares of class B common stock, par value $0.01 per share ('Class B Common Stock' and, together with Class A Common Stock, the 'Shares'), 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 Purchaser's 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 'First Supplement') and the second Supplement to the Offer to Purchase, dated January 8, 2003 (the 'Second Supplement'), and the related revised Letter of Transmittal (which, together, as amended, supplemented or otherwise modified from time to time, constitute the 'Offer'). As of January 7, 2003, there were 25,628,392 Shares outstanding on a fully diluted basis (including 'in-the-money' options to acquire Shares ('Options') and excluding Shares owned by Omnicare and its affiliates). Pursuant to an order of the Court of Chancery of the State of Delaware (the 'Chancery Court') dated January 6, 2003, and the letter agreement (the 'Letter Agreement') among Omnicare, Purchaser and the Company, dated January 5, 2003, upon acceptance by the Purchaser of Shares tendered in the Offer, holders of Shares will receive $5.149 per Share in cash, without interest and less required withholding taxes, and Omnicare and Purchaser will deposit the remaining $0.351 of the offer price per Share in cash into an escrow account pending a further order of the Chancery Court with respect to any application by the Stockholder-Plaintiffs (as defined in the Second Supplement) for attorneys' fees and expenses in connection with the Stockholder-Plaintiffs' action against the Company and its directors. Any amount remaining in the escrow account (plus any interest on amounts in the escrow account) following the Chancery Court's further order and any appeal therefrom will be distributed to holders of Shares (including Options) and Omnicare as described in the Second Supplement. See Section 1 ('Amended Terms of the Offer; Expiration Date') of the Second Supplement. The Offer is conditioned upon, among other things, there having been validly tendered and not properly withdrawn prior to the Expiration Date (as defined in the Second Supplement) that number of Shares representing, together with the Shares owned by Omnicare, at least a majority of the total voting power of all of the outstanding securities of the Company entitled to vote generally in the election of directors or in a merger (calculated on a fully diluted basis after consummation of the Offer). The Offer is not conditioned on obtaining financing. For your information and for forwarding to your clients for whom you hold Shares registered in your name or in the name of your nominee, we are enclosing the following documents: 1. The Second Supplement; 2. The revised (green) Letter of Transmittal to be used by holders of Shares in accepting the Offer and tendering Shares (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 providing information relating to backup federal income tax withholding); 3. The revised (yellow) Notice of Guaranteed Delivery to be used to accept the Offer if Shares and all other required documents cannot be delivered to The Bank of New York (the 'Depositary') by the Expiration Date or if the procedure for book-entry transfer cannot be completed by the Expiration Date; 4. A revised form of letter which may be sent to your clients for whose accounts you hold Shares registered in your name or in the name of your nominee, with space provided for obtaining such clients' instructions with regard to the Offer; and 5. Return envelope addressed to the Depositary. WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, TUESDAY, JANUARY 14, 2003, UNLESS THE OFFER IS EXTENDED. The board of directors of the Company, by unanimous vote, (1) has approved the Merger Agreement (as defined below), the Offer and the Proposed Merger (as defined below), (2) has determined that the terms of the Offer and the Proposed Merger are advisable, fair to, and in the best interests of, the Company and the Company stockholders and (3) recommends that the Company stockholders accept the Offer and tender their Shares to Purchaser pursuant to the Offer. In addition the board of directors of the Company, by unanimous vote of those present, has also approved the Letter Agreement. This Offer is being made pursuant to an Agreement and Plan of Merger, dated as of December 17, 2002 (the 'Merger Agreement'), by and among Omnicare, Purchaser and the Company and the Letter Agreement. The Merger Agreement provides for, among other things, the making of the Offer by the Purchaser and further provides that the Purchaser will be merged with and into the Company (the 'Proposed Merger') as promptly as possible following the satisfaction or waiver of each of the conditions to the Proposed Merger set forth in the Merger Agreement. Following the Proposed Merger, the Company will continue as the surviving corporation, wholly-owned by Omnicare, and the separate corporate existence of the Purchaser will cease. 2 Purchaser will not pay any fees or commissions to any broker or dealer or other person (other than the Information Agent or the Depositary as described in the Offer to Purchase) for soliciting tenders of Shares pursuant to the Offer. Purchaser will, however, upon request, reimburse brokers, dealers, commercial banks and trust companies for reasonable and necessary costs and expenses incurred by them in forwarding materials to their customers. Purchaser will pay all stock transfer taxes applicable to its purchase of Shares pursuant to the Offer, subject to Instruction 6 of the Letter of Transmittal. In order to accept the Offer, a duly executed and properly completed revised (green) Letter of Transmittal, revised (yellow) Letter of Transmittal or original (blue) Letter of Transmittal, and any required signature guarantees, or an Agent's Message (as defined in the Offer to Purchase) in connection with a book-entry delivery of Shares, and any other required documents, should be sent to the Depositary by 12:00 Midnight, New York City time, on Tuesday, January 14, 2003. Questions or requests for assistance may be directed to Innisfree M&A Incorporated, the Information Agent, or the undersigned at the addresses and telephone numbers set forth on the back cover page of the Second Supplement. You can also obtain additional copies of the Offer to Purchase, the First Supplement, the Second Supplement, the revised Letter of Transmittal and the revised Notice of Guaranteed Delivery from the Information Agent. Very truly yours, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON, THE AGENT OF PURCHASER, OMNICARE, THE DEALER MANAGER, THE INFORMATION AGENT OR THE DEPOSITARY, OR OF ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN. 3 EX-99 7 ex99-a1cccc.txt EXHIBIT (A)(1)(CCCC) Exhibit (a)(1)(CCCC) Offer to Purchase for Cash All Outstanding Shares of Class A Common Stock and Class B Common Stock of NCS HEALTHCARE, INC. at $5.50 NET PER SHARE by NCS ACQUISITION CORP., a wholly-owned subsidiary of OMNICARE, INC. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, JANUARY 14, 2003, UNLESS THE OFFER IS EXTENDED. January 8, 2003 To Our Clients: Enclosed for your consideration is a Supplement, dated January 8, 2003 (the 'Second Supplement'), to 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 'First Supplement'), and the related revised (green) Letter of Transmittal (which together, as amended, supplemented or otherwise modified from time to time, constitute the 'Offer') in connection with the offer by Omnicare, Inc., a Delaware corporation ('Omnicare'), through NCS Acquisition Corp., a Delaware corporation ('Purchaser') and a wholly-owned subsidiary of Omnicare, to purchase for cash all of the issued and outstanding shares of class A common stock, par value $0.01 per share ('Class A Common Stock') and all of the issued and outstanding shares of class B common stock, par value $0.01 per share ('Class B Common Stock' and, together with Class A Common Stock, the 'Shares'), of NCS HealthCare, Inc., a Delaware corporation (the 'Company'). We are the holder of record of Shares held for your account. A tender of such Shares can be made only by us as the holder of record and pursuant to your instructions. The revised Letter of Transmittal is furnished to you for your information only and cannot be used by you to tender Shares held by us for your account. We request instructions as to whether you wish us to tender any or all of the Shares held by us for your account, upon the terms and subject to the conditions set forth in the Offer. Your attention is invited to the following: 1. The tender price is $5.50 per Share, net to you in cash, without interest and less required withholding taxes. As of January 7, 2003, there were 25,628,392 Shares outstanding on a fully diluted basis (including 'in-the-money' options to acquire Shares ('Options') and excluding Shares owned by Omnicare and its affiliates). Pursuant to an order of the Court of Chancery of the State of Delaware (the 'Chancery Court') dated January 6, 2003, and the letter agreement (the 'Letter Agreement') among Omnicare, Purchaser and the Company, dated January 5, 2003, upon acceptance by the Purchaser of Shares tendered in the Offer, you will receive $5.149 per Share in cash, without interest and less required withholding taxes, and Omnicare and Purchaser will deposit the remaining $0.351 of the offer price per Share in cash into an escrow account pending a further order of the Chancery Court with respect to an application by the Stockholder-Plaintiffs (as defined in the Second Supplement) for attorneys' fees and expenses in connection with the Stockholder-Plaintiffs' action against the Company and its directors. Any amount remaining in the escrow account (plus any interest on the amount in the escrow account) following the Chancery Court's further order and any appeal therefrom will be distributed to holders of Shares (including Options) and Omnicare as described in the Second Supplement. See Section 1 ('Amended Terms of the Offer; Expiration Date') of the Second Supplement. 2. The Offer and withdrawal rights expire at 12:00 Midnight, New York City time, on Tuesday, January 14, 2003, unless the Offer is extended. 3. The Offer is conditioned upon, among other things, there having been validly tendered and not properly withdrawn prior to the Expiration Date (as defined in the Second Supplement) that number of Shares representing, together with the Shares owned by Omnicare, at least a majority of the total voting power of all of the outstanding securities of the Company entitled to vote generally in the election of directors or in a merger (calculated on a fully diluted basis after consummation of the Offer). The Offer is not conditioned on obtaining financing. 4. The board of directors of the Company, by unanimous vote, (1) has approved the Merger Agreement (as defined below), the Offer and the Proposed Merger (as defined below), (2) has determined that the terms of the Offer and the Proposed Merger are advisable, fair to, and in the best interests of, the Company and the Company stockholders and (3) recommends that the Company stockholders accept the Offer and tender their Shares to Purchaser pursuant to the Offer. In addition, the board of directors of the Company, by unanimous vote of those present, has also approved the Letter Agreement. 5. This Offer is being made pursuant to an Agreement and Plan of Merger, dated as of December 17, 2002 (the 'Merger Agreement'), by and among Omnicare, Purchaser and the Company and the Letter Agreement. The Merger Agreement provides for, among other things, the making of the Offer by the Purchaser and further provides that the Purchaser will be merged with and into the Company (the 'Proposed Merger') as promptly as possible following the satisfaction or waiver of each of the conditions to the Proposed Merger set forth in the Merger Agreement. Following the Proposed Merger, the Company will continue as the surviving corporation, wholly-owned by Omnicare, and the separate corporate existence of the Purchaser will cease. 6. Any stock transfer taxes applicable to the sale of Shares to Purchaser pursuant to the Offer will be paid by Purchaser, except as otherwise provided in Instruction 6 of the revised Letter of Transmittal. If you wish to have us tender any or all of your Shares, please so instruct us by completing, executing, detaching and returning to us the instruction form on the detachable part hereof. An envelope to return your instructions to us is enclosed. If you authorize tender of your Shares, all such Shares will be tendered unless otherwise specified on the detachable part hereof. YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO SUBMIT A TENDER ON YOUR BEHALF BY THE EXPIRATION OF THE OFFER. The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of Shares in any jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the laws of such jurisdiction. In any jurisdiction where the securities, blue sky or other laws require the Offer to be made by a licensed broker or dealer, the Offer shall be deemed to be made on behalf of Purchaser by Merrill Lynch & Co., the Dealer Manager for the Offer, or by one or more registered brokers or dealers licensed under the laws of such jurisdiction. Payment for Shares purchased pursuant to the Offer will in all cases be made only after timely receipt by The Bank of New York (the 'Depositary') of (a) certificates representing the Shares tendered or timely confirmation of the book-entry transfer of such Shares into the account maintained by the Depositary at The Depository Trust Company (the 'Book-Entry Transfer Facility'), pursuant to the procedures set forth in Section 4 ('Procedure for Tendering Shares') of the Offer to Purchase, (b) the revised (green) Letter of Transmittal, the revised (yellow) Letter of Transmittal or original (blue) Letter of Transmittal, properly completed and duly executed, with any required signature guarantees or an Agent's Message (as defined in the Offer to Purchase), in connection with a book-entry delivery and (c) any other documents required by the revised Letter of Transmittal. Accordingly, 2 payment may not be made to all tendering stockholders at the same time depending upon when certificates for or confirmations of book-entry transfer of such Shares into the Depositary's account at the Book-Entry Transfer Facility are actually received by the Depositary. EXCEPT IN CONNECTION WITH THE ESCROW ACCOUNT, AS DESCRIBED IN THE SECOND SUPPLEMENT, UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT. 3 INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH ALL OUTSTANDING SHARES OF CLASS A COMMON STOCK AND CLASS B COMMON STOCK OF NCS HEALTHCARE, INC. The undersigned acknowledge(s) receipt of your letter and the Offer to Purchase, dated August 8, 2002, the Supplement to the Offer to Purchase, dated December 23, 2002, the enclosed Second Supplement to the Offer to Purchase, dated January 8, 2003, and the related revised (green) Letter of Transmittal, in connection with the offer by Omnicare through Purchaser to purchase all of the issued and outstanding shares of class A common stock, par value $0.01 per share ('Class A Common Stock'), and all of the issued and outstanding shares of class B common stock, par value $0.01 per share ('Class B Common Stock' and, together with Class A Common Stock, the 'Shares'), of NCS HealthCare, Inc., a Delaware corporation. This will instruct you to tender the number of Shares indicated below held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Offer. Shares* - ----------------------------------------- --------------------------------------- Number of Shares of Class A Common Stock Signature(s) Tendered Shares* - ----------------------------------------- --------------------------------------- Number of Shares of Class B Common Stock Please type or print name(s) Tendered --------------------------------------- Please type or print address --------------------------------------- Area Code and Telephone Number Dated - ----------------------------------------- --------------------------------------- Taxpayer Identification or Social Security Number
* Unless otherwise indicated, it will be assumed that all Shares held by us for your account are to be tendered. 4 EX-99 8 ex99-a1dddd.txt EXHIBIT (A)(1)(DDDD) Exhibit (a)(1)(DDDD) GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER. Social Security Numbers have nine digits separated by two hyphens: i.e. 000-00-0000. Employer Identification Numbers have nine digits separated by only one hyphen: i.e. 00-0000000. The table below will help determine the number to give the payer.
- -------------------------------------- GIVE THE SOCIAL FOR THIS TYPE OF SECURITY ACCOUNT: NUMBER OF: - -------------------------------------- 1. Individual The individual 2. Two or more The actual owner of individuals (joint the account or, if account) combined funds, the first individual on the account(1) 3. Custodian account The minor(2) of a minor (Uniform Gift to Minors Act) 4. (a) The usual The revocable grantor-trustee(1) savings trust account (grantor is also trustee) (b) So-called trust The actual owner(1) account that is not a legal or valid trust under State law 5. Sole proprietorship The owner(3) - --------------------------------------
- -------------------------------------- GIVE THE EMPLOYER FOR THIS TYPE OF IDENTIFICATION ACCOUNT: NUMBER OF: - -------------------------------------- 6. Sole The owner(3) proprietorship 7. A valid trust, The legal entity(4) estate, or pension trust 8. Corporate The corporation 9. Association, The organization club, religious, charitable, educational, or other tax-exempt organization 10. Partnership The partnership 11. A broker or The broker or nominee registered nominee 12. Account with the The public entity Department of Agriculture in the name of a public entity (such as a State or local government, school district, or prison) that receives agricultural program payments - --------------------------------------
(1) List first and circle the name of the person whose number you furnish. If only one person on a joint account has a Social Security Number, that person's Social Security Number must be furnished. (2) Circle the minor's name and furnish the minor's Social Security Number. (3) You must show your individual name, but you may also enter your business or 'doing business as' name. You may either use your Social Security Number or Employer Identification Number. (4) List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title.) NOTE: If no name is circled when there is more than one name listed, the number will be considered to be that of the first name listed. GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 OBTAINING A NUMBER If you do not have a Taxpayer Identification Number or you do not know your number, obtain Form SS-5, Application for a Social Security Number Card, or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service or by calling 1 (800) TAX-FORM and apply for a number. PAYEES EXEMPT FROM BACKUP WITHHOLDING Payees specifically exempted from backup withholding on ALL payments include the following: An organization exempt from tax under Section 501(a), any IRA, or a custodial account under Section 403(b)(7) if the account satisfies the requirements of Section 401(f)(2). The United States or any of its agencies or instrumentalities. A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities. A foreign government or any of its political subdivisions, agencies or instrumentalities. An international organization or any of its agencies, or instrumentalities. Payees that may be exempt from backup withholding include: A corporation. A financial institution. A dealer in securities or commodities required to register in the U.S., the District of Columbia, or a possession of the U.S. A real estate investment trust. A common trust fund operated by a bank under Section 584(a). A trust exempt from tax under Section 664 or described in Section 4947. An entity registered at all times during the tax year under the Investment Company Act of 1940. A foreign central bank of issue. A middleman known in the investment community as a nominee or custodian. A futures commission merchant registered with the Commodity Futures Trading Commission. Payments of dividends and patronage dividends not generally subject to backup withholding include the following: Payments to nonresident aliens subject to withholding under Section 1441. Payments to partnerships not engaged in a trade or business in the U.S. and that have at least one nonresident alien partner. Payments of patronage dividends not paid in money. Payments made by certain foreign organizations. Section 404(k) distribution made by an ESOP. Payments of interest not generally subject to backup withholding include the following: Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer's trade or business and you have not provided your correct Taxpayer Identification Number to the payer. Payments of tax-exempt interest (including exempt-interest dividends under Section 852). Payments described in Section 6049(b)(5) to nonresident aliens. Payments on tax-free covenant bonds under Section 1451. Payments made by certain foreign organizations. Mortgage or student loan interest paid to you. Exempt payees described above should file Substitute Form W-9 to avoid possible erroneous backup withholding. CHECK THE BOX ON THE FACE OF THE FORM IN PART 2, SIGN AND DATE THE FORM, AND RETURN IT TO THE PAYER. Certain payments, other than interest, dividends, and patronage dividends, that are not subject to information reporting are also not subject to backup withholding. For details, see the regulations under Sections 6041, 6041A(a), 6042, 6044, 6045, 6049, 6050A, AND 6050N. PRIVACY ACT NOTICE -- Section 6109 requires most recipients of dividend, interest, or other payments to give their correct Taxpayer Identification Numbers to payers who must report the payments to the IRS. The IRS uses the numbers for identification purposes and to help verify the accuracy of tax returns. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must generally withhold a certain percentage (currently 30%) of taxable interest, dividend, and certain other payments to a payee who does not furnish a Taxpayer Identification Number to a payer. Certain penalties may also apply. PENALTIES (1) Penalty For Failure to Furnish Taxpayer Identification Number. If you fail to furnish your taxpayer identification number to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) Civil Penalty for False Information with Respect to Withholding. If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500. (3) Criminal Penalty for Falsifying Information. Wilfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. (4) Misuse of Taxpayer Identification Numbers. If the requester discloses or uses taxpayer identification numbers in violation of federal law, the requester may be subject to civil and criminal penalties. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE. 2 EX-99 9 ex99-a1eeee.txt EXHIBIT (A)(1)(EEEE) Exhibit (a)(1)(EEEE) IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY - -------------------------------------------- Dolphin Limited Partnership I, L.P. et al. : : : v. : C.A. No. 20101-NC : : NCS Acquisition Corp. and Omnicare, Inc. : - -------------------------------------------- MODIFIED ORDER WHEREAS, Plaintiffs having moved the Court for a Temporary Restraining Order, for the reasons stated on the record on January 2, 2003; and WHEREAS, the Court having granted a Temporary Restraining Order temporarily restraining and enjoining Omnicare, Inc. ("Omnicare") and NCS Acquisition Corp., a wholly owned subsidiary of Omnicare (together with Omnicare, the "Defendants") 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; and WHEREAS, defendant Omnicare having subsequently agreed to contribute $4.5 million of its own money (the "Omnicare Escrow Amount") to the escrow fund, in addition to the consideration to be paid pursuant to its tender offer for the stock of NCS and related merger, subject to and in accordance with the terms of a letter agreement with NCS, dated January 5, 2003; IT IS this 6th day of January, 2003, ORDERED as follows: 1. The Court's order dated January 2, 2003 is hereby modified to reflect that Defendants and their directors, officers, agents, servants, employees, attorneys, parents and subsidiaries are hereby temporarily restrained and enjoined from paying to the shareholders of NCS the sum of $9,000,000 (the "Stockholder Escrow Amount") 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, which amount, together with the Omnicare Escrow Amount, comprise the escrow fund from which to fund an award of plaintiffs' counsel's fees and expenses. 2. The Stockholder Escrow Amount shall be withheld by proration among all NCS shares (including in the money stock options) NCS Acquisition Corp. 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 Omnicare Escrow Amount and the Stockholder Escrow Amount into one 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. 2 5. This modified order supercedes in all respects the temporary retraining order entered on January 2, 2003. /s/ Stephen P. Lamb ----------------------------------- Vice Chancellor Dated: January 6, 2003 3 EX-99 10 ex99-a1ffff.txt EXHIBIT (A)(1)(FFFF) Exhibit (a)(1)(FFFF) [LETTERHEAD OF OMNICARE, INC.] Omnicare news release - -------------------------------------------------------------------------------- Omnicare Amends Tender Offer for NCS HealthCare to Reflect Contribution to Stockholder Escrow Fund Omnicare's Tender Offer Extended and Scheduled to Expire on January 14, 2003 COVINGTON, Ky., January 8, 2003 -- Omnicare, Inc. (NYSE: OCR), a leading provider of pharmaceutical care for the elderly, today announced that it has extended and is amending its tender offer for all of the outstanding shares of Class A common stock and Class B common stock of NCS HealthCare, Inc. (NCSS.OB) to reflect its agreement to contribute $4,500,000 of the court-ordered $13,500,000 stockholder escrow fund, thereby reducing the amount that will be required to be withheld from NCS stockholders pending resolution of the NCS stockholder-plaintiffs' application for attorneys' fees and expenses. On January 6, 2003, the Delaware Chancery Court confirmed that, because Omnicare had agreed to contribute $4,500,000 to the $13,500,000 stockholder escrow fund, only $9,000,000 will be required to be withheld from the amount to be paid to NCS stockholders in the tender offer and the merger on a pro rata basis. Based on the number of shares of NCS common stock outstanding on a fully diluted basis (which includes "in-the-money" stock options) on January 7, 2003, holders of shares of NCS common stock will receive $5.149 in the tender offer and the merger, as applicable, and $0.351 per share will be withheld and deposited into the escrow fund in accordance with the Chancery Court's order. Based on the amount that may be awarded by the Chancery Court to the stockholder-plaintiffs' counsel, NCS stockholders may receive all, a portion or none of the $0.351 per share following the Court's decision. The tender offer, which was scheduled to expire at 12:00 Midnight, New York City time, on Tuesday, January 7, 2003, has been extended and is now scheduled to expire at 12:00 Midnight, New York City time on Tuesday, January 14, 2003, unless extended. The NCS Board of Directors has unanimously approved the Omnicare tender offer and merger and unanimously recommends that NCS stockholders tender their shares in the offer. Following completion of the tender offer, a wholly-owned subsidiary of Omnicare will merge into NCS, pursuant to which those shares not tendered will be converted into the right to receive the per share amount paid in the offer. NCS has advised Omnicare that all of its directors and executive officers, who, as a group own approximately 1,208,737 shares of Class A common stock and 4,810,806 shares of Class B common stock, intend to tender their shares in Omnicare's amended tender offer. As of the close of business on January 7, 2003, a total of 16,463,104 shares of Class A common stock had been tendered, which represents approximately 88% of the outstanding shares of Class A common stock, and a total of 303,767 shares of Class B common stock had been tendered, which represents approximately 6% of the outstanding shares of Class B common stock. 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 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; the outcome of litigation in connection with the NCS stockholder-plaintiffs' request for attorneys' fees and expenses; the timing of and ability to successfully conclude the tender offer and merger with NCS; the intention of the NCS directors and executive officers to tender their shares, 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 successful integration of APS and other acquired companies; 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 / Andy Brimmer Omnicare, Inc. Joele Frank, Wilkinson Brimmer Katcher (859) 392-3331 (212) 355-4449, ext. 121 -----END PRIVACY-ENHANCED MESSAGE-----