-----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, WoUCTP576/bvdSobgMSqMyR+uRLNwyPbAuWY7UvaFc3RxLdjYCNzT3Z2D1YjXrFm ilPn3crWhMEgjBD8G1Wqpg== 0000898822-05-000719.txt : 20050708 0000898822-05-000719.hdr.sgml : 20050708 20050707181846 ACCESSION NUMBER: 0000898822-05-000719 CONFORMED SUBMISSION TYPE: SC 14D9/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20050708 DATE AS OF CHANGE: 20050707 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: NEIGHBORCARE INC CENTRAL INDEX KEY: 0000874265 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DRUG STORES AND PROPRIETARY STORES [5912] IRS NUMBER: 061132947 STATE OF INCORPORATION: PA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 14D9/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-44049 FILM NUMBER: 05944302 BUSINESS ADDRESS: STREET 1: NEIGHBORCARE, INC. STREET 2: 601 EAST PRATT STREET THIRD FLOOR CITY: BALTIMORE STATE: MD ZIP: 21202 BUSINESS PHONE: (410) 528-7300 MAIL ADDRESS: STREET 1: NEIGHBORCARE, INC. STREET 2: 601 EAST PRATT STREET THIRD FLOOR CITY: BALTIMORE STATE: MD ZIP: 21202 FORMER COMPANY: FORMER CONFORMED NAME: GENESIS HEALTH VENTURES INC /PA DATE OF NAME CHANGE: 19950214 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: NEIGHBORCARE INC CENTRAL INDEX KEY: 0000874265 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DRUG STORES AND PROPRIETARY STORES [5912] IRS NUMBER: 061132947 STATE OF INCORPORATION: PA FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: SC 14D9/A BUSINESS ADDRESS: STREET 1: NEIGHBORCARE, INC. STREET 2: 601 EAST PRATT STREET THIRD FLOOR CITY: BALTIMORE STATE: MD ZIP: 21202 BUSINESS PHONE: (410) 528-7300 MAIL ADDRESS: STREET 1: NEIGHBORCARE, INC. STREET 2: 601 EAST PRATT STREET THIRD FLOOR CITY: BALTIMORE STATE: MD ZIP: 21202 FORMER COMPANY: FORMER CONFORMED NAME: GENESIS HEALTH VENTURES INC /PA DATE OF NAME CHANGE: 19950214 SC 14D9/A 1 finalamend19.txt - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 --------------------- Schedule 14D-9 SOLICITATION/RECOMMENDATION STATEMENT PURSUANT TO SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 19) --------------------- NEIGHBORCARE, INC. (Name of Subject Company) --------------------- NEIGHBORCARE, INC. (Name of Person(s) Filing Statement) Common Stock, Par Value $0.02 Per Share (including the Associated Series B Junior Participating Preferred Stock Purchase Rights) (Title of Class of Securities) 64015Y-10-4 (CUSIP Number of Class of Securities) --------------------- John F. Gaither, Esq. Senior Vice President, General Counsel and Secretary NeighborCare, Inc. 601 East Pratt Street, 3rd Floor Baltimore, MD 21202 (410) 528-7404 (Name, Address and Telephone Number of Person Authorized to Receive Notice and Communications on Behalf of the Person(s) Filing Statement) --------------------- With copies to: Mark Gordon, Esq. Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 (212) 403-1000 [ ] Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. The purpose of this amendment is to amend and supplement Items 3, 4(b), 7, and 8 and to add additional Exhibits to Item 9 in the Solicitation/Recommendation Statement on Schedule 14D-9 previously filed by NeighborCare, Inc., a Pennsylvania corporation, on June 14, 2004, as thereafter amended, and to revise the Exhibit Index accordingly. ITEM 3. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS; ITEM 4. THE SOLICITATION OR RECOMMENDATION; ITEM 7. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS Items 3, 4(b), and 7 are hereby amended and supplemented as follows: On July 1, 2005, NeighborCare and Omnicare entered into a Non-Disclosure Agreement, a copy of which is attached as Exhibit (a)(41) hereto and is incorporated herein by reference. On July 6, 2005, NeighborCare, Inc., Omnicare, Inc., and Nectarine Acquisition Corp. ("Merger Sub") executed an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which Omnicare will offer to purchase all of the outstanding shares of common stock of the Company at a price of $34.75 per share net to the seller in cash, without interest. The Merger Agreement further provides that, if the Offer is consummated and provided that certain other conditions are satisfied, Merger Sub will be merged with and into the Company, with the Company surviving as a wholly owned subsidiary of Omnicare. Pursuant to the terms of the Merger Agreement, Omnicare will amend its outstanding Offer by July 13, 2005 to reflect the terms of the Merger Agreement. The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to such agreement, the full text of which is filed as Exhibit (a)(42) hereto and is incorporated herein by reference. On July 7, 2005, Omnicare and NeighborCare issued a press release regarding the execution of the Merger Agreement, the full text of which is filed as Exhibit (a)(37) hereto and is incorporated herein by reference, as well as letters to employees and customers, the full texts of which are filed, respectively, as Exhibit (a)(38) and (a)(39) hereto and are incorporated herein by reference. ITEM 8. ADDITIONAL INFORMATION. Item 8 of Schedule 14D-9 is hereby amended by adding the following to the end of the paragraph entitled "Board Action Regarding Rights Agreement": At its meeting on July 6, 2005, the Board of Directors of the Company adopted an amendment to the Rights Agreement in order to render the Rights inapplicable to the execution of the Merger Agreement, the $34.75 Offer, the Merger and the other transactions contemplated by the Merger Agreement. A copy of Amendment No. 1 to the Rights Agreement is filed as Exhibit (a)(40) to this Amendment No. 19 filed with the Commission and is incorporated herein by reference. ITEM 9. EXHIBITS. - --------- ---------------------------------------------------------- Exhibit No. Description - --------- ---------------------------------------------------------- (a)(37) Press Release, dated July 7, 2005 (a)(38) Letter, dated July 7, 2005, to NeighborCare Employees (a)(39) Letter, dated July 7, 2005, to NeighborCare Customers (a)(40) Amendment No. 1 to the Rights Agreement (a)(41) Non-Disclosure Agreement, dated July 1, 2005, by and among Omnicare, Inc., Nectarine Acquisition Corp. and NeighborCare, Inc. (Incorporated herein by reference to Exhibit (d)(1) to Amendment No. 33 to the Schedule TO filed by Omnicare, Inc. and Nectarine Acquisition Corp. on July 7, 2005) (a)(42) Agreement and Plan of Merger, dated July 6, 2005, by and among Omnicare, Inc., Nectarine Acquisition Corp. and NeighborCare, Inc. (Incorporated herein by reference to Exhibit (a)(5)(A) to Amendment No. 33 to the Schedule TO filed by Omnicare, Inc. and Nectarine Acquisition Corp. on July 7, 2005) -2- SIGNATURE After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this amendment is true, complete and correct. NEIGHBORCARE, INC. By:/s/ John F. Gaither, Jr. ------------------------------------- John F. Gaither, Jr. Senior Vice President, eneral Counsel and Secretary Dated: July 7, 2005 -3- INDEX OF EXHIBITS Exhibit No. Description - ---------- ---------------------------------------------------------- (a)(37) Press Release, dated July 7, 2005 (a)(38) Employee Letter, dated July 7, 2005 (a)(39) Customer Letter, dated July 7, 2005 (a)(40) Amendment No. 1 to the Rights Agreement (a)(41) Non-Disclosure Agreement, dated July 1, 2005, by and among Omnicare, Inc., Nectarine Acquisition Corp. and NeighborCare, Inc. (Incorporated herein by reference to Exhibit (d)(1) to Amendment No. 33 to the Schedule TO filed by Omnicare, Inc. and Nectarine Acquisition Corp. on July 7, 2005) (a)(42) Agreement and Plan of Merger, dated July 6, 2005, by and among Omnicare, Inc., Nectarine Acquisition Corp. and NeighborCare, Inc. (Incorporated herein by reference to Exhibit (a)(5)(A) to Amendment No. 33 to the Schedule TO filed by Omnicare, Inc. and Nectarine Acquisition Corp. on July 7, 2005) -4- EX-99 2 press_release.txt (a)(37) FOR IMMEDIATE RELEASE OMNICARE CONTACTS: NEIGHBORCARE CONTACTS: Cheryl Hodges Investors: Tania Almond (859) 392-3331 (410) 528-7555 Andy Brimmer / Jamie Moser Media: Denise DesChenes/Dan Gagnier Joele Frank, Wilkinson Brimmer Katcher Citigate Sard Verbinnen (212) 355-4449 212-687-8080 OMNICARE AND NEIGHBORCARE SIGN DEFINITIVE MERGER AGREEMENT FOR $1.8 BILLION TRANSACTION; COMBINATION CREATES PREMIER INSTITUTIONAL PHARMACY COMPANY COVINGTON, KY and BALTIMORE, MD - (July 7, 2005) - Omnicare, Inc. (NYSE: OCR) and NeighborCare, Inc. (NASDAQ: NCRX) today announced that the two companies have entered into a definitive merger agreement under which Omnicare will acquire all of the outstanding shares of NeighborCare common stock for $34.75 per share in cash, for a total transaction value of approximately $1.8 billion, which includes approximately $245 million of NeighborCare's net debt. The transaction was unanimously approved by the Boards of Directors of both Omnicare and NeighborCare. The transaction will enhance Omnicare's position as the leading provider of pharmacy services for the elderly and will bring Omnicare's total number of beds served to nearly 1.4 million, an increase of approximately 27%. The combined company will have a nationwide network of pharmacies serving long-term care providers in 47 states and the District of Columbia. Based upon results for Omnicare and NeighborCare for the quarter ended March 31, 2005, Omnicare's combined annualized revenues on a pro forma basis would be approximately $6.0 billion. Under the terms of the merger agreement, Omnicare will amend its outstanding tender offer for all of the outstanding shares of NeighborCare on or about July 14, 2005 to reflect the terms of the agreement. The merger, which has already cleared the waiting period under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, is expected to close during the third quarter. Given the substantial economies of scale and cost synergies anticipated from the acquisition, it is expected that it will be significantly accretive to Omnicare's diluted earnings per share in 2006 and beyond. Joel F. Gemunder, president and chief executive officer of Omnicare, said, "We are very pleased to enter into a definitive merger agreement to acquire NeighborCare as we believe this transaction will deliver substantial value for the stockholders of both companies. More than a year in the making, the combination of our companies, we believe, will create a premier institutional pharmacy company and result in substantial benefits to both companies' customers, employees and other interested constituencies. Omnicare's acquisition of NeighborCare expands our reach and presence and enhances our opportunities for efficiencies through economies of scale. With our strong track record of enhancing shareholder value through the successful integration of acquisitions, I am confident that we will be able to rapidly and seamlessly integrate our two organizations to build a stronger, more efficient company while continuing to provide the excellent service and care that each and every customer expects from us." John J. Arlotta, NeighborCare's chairman, president and chief executive officer said, "After careful consideration, our Board has decided that Omnicare's revised offer is in the best interests of our shareholders. Over the past year and a half as an independent company, our organization has made significant progress in achieving our business goals and we are pleased that Omnicare has recognized the values inherent in our enterprise. We now believe that we can create even greater value by combining with Omnicare." The transaction is subject to the satisfaction of customary closing conditions contained in the merger agreement and the completion of the outstanding tender offer for NeighborCare's shares. Dewey Ballantine LLP and Axinn, Veltrop & Harkrider LLP are acting as legal counsel to Omnicare and Lehman Brothers Inc. and Lazard are acting as financial advisors. Innisfree M&A Incorporated is acting as information agent for Omnicare's offer. Wachtell, Lipton, Rosen & Katz is acting as NeighborCare's legal counsel and Goldman, Sachs & Co. is serving as financial advisor. MacKenzie Partners, Inc. is serving as NeighborCare's information agent. ABOUT OMNICARE, INC. Omnicare, Inc. (NYSE:OCR), a Fortune 500 company based in Covington, Kentucky, is a leading provider of pharmaceutical care for the elderly. Omnicare serves residents in long-term care facilities comprising approximately 1,090,000 beds in 47 states in the United States and in Canada, making it the largest U.S. 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 30 countries worldwide. ABOUT NEIGHBORCARE, INC. NeighborCare, Inc. (NASDAQ: NCRX) is one of the nation's leading institutional pharmacy providers serving long term care and skilled nursing facilities, specialty hospitals, assisted and independent living communities, and other assorted group settings. NeighborCare also provides infusion therapy services, home medical equipment, respiratory therapy services, community-based retail pharmacies and group purchasing. In total, NeighborCare's operations span the nation, providing pharmaceutical services in 34 states and the District of Columbia. Visit our website at WWW.NEIGHBORCARE.COM. STATEMENTS MADE IN THIS DOCUMENT, OUR WEBSITE AND IN OUR OTHER PUBLIC FILINGS AND RELEASES, WHICH ARE NOT HISTORICAL FACTS CONTAIN "FORWARD-LOOKING" STATEMENTS (AS DEFINED IN THE FEDERAL SECURITIES LAWS) THAT INVOLVE RISKS AND UNCERTAINTIES AND ARE SUBJECT TO CHANGE AT ANY TIME. THESE FORWARD-LOOKING STATEMENTS MAY INCLUDE, BUT ARE NOT LIMITED TO, STATEMENTS CONTAINING WORDS SUCH AS "ANTICIPATE," "BELIEVE," "PLAN," "ESTIMATE," "EXPECT," "INTEND," "MAY", "TARGET" AND SIMILAR EXPRESSIONS. SUCH FORWARD LOOKING STATEMENTS INCLUDE, WITHOUT LIMITATION, STATEMENTS REGARDING THE EFFECT OF THE SPIN-OFF ON OUR OPERATIONS, EXPECTED CHANGES IN REIMBURSEMENT RATES AND INFLATIONARY INCREASES IN STATE MEDICAID RATES, EXPECTED BED COUNT, EXPECTED SG&A EXPENSE, ANTICIPATED RESTRUCTURING CHARGES AND ESTIMATES OF TIMING AND COSTS SAVINGS RELATED TO COST IMPROVEMENT INITIATIVES. FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY INCLUDE, BUT ARE NOT LIMITED TO, THE FOLLOWING: COSTS, CHANGES IN THE REIMBURSEMENT RATES OR METHODS OF PAYMENT FROM MEDICARE OR MEDICAID, OR THE IMPLEMENTATION OF OTHER MEASURES TO REDUCE REIMBURSEMENT FOR OUR SERVICES; CHANGES IN PHARMACY LEGISLATION AND PAYMENT FORMULAS; THE EXPIRATION OF ENACTMENTS PROVIDING FOR ADDITIONAL GOVERNMENT FUNDING; EFFORTS OF THIRD PARTY PAYORS TO CONTROL COSTS; THE IMPACT OF FEDERAL AND STATE REGULATIONS; CHANGES IN PAYOR MIX AND PAYMENT METHODOLOGIES; FURTHER CONSOLIDATION OF MANAGED CARE ORGANIZATIONS AND OTHER THIRD PARTY PAYORS; COMPETITION IN OUR BUSINESS; AN INCREASE IN INSURANCE COSTS AND POTENTIAL LIABILITY FOR LOSSES NOT COVERED BY, OR IN EXCESS OF, OUR INSURANCE; COMPETITION FOR QUALIFIED STAFF IN THE HEALTHCARE INDUSTRY; OUR ABILITY TO CONTROL OPERATING COSTS, AND GENERATE SUFFICIENT CASH FLOW TO MEET OPERATIONAL AND FINANCIAL REQUIREMENTS; AND AN ECONOMIC DOWNTURN OR CHANGES IN THE LAWS AFFECTING OUR BUSINESS IN THOSE MARKETS IN WHICH NEIGHBORCARE OPERATES. OUR BUSINESS, OPERATIONS OR RESULTS COULD ALSO BE AFFECTED BY THE EFFECTS OF OMNICARE'S TENDER OFFER OR ITS PENDENCY ON THE COMPANY AND ITS BUSINESS, EMPLOYEES, CUSTOMERS AND SUPPLIERS. THE FORWARD-LOOKING STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS THAT ARE, IN SOME CASES, BEYOND OUR CONTROL. WE CAUTION INVESTORS THAT ANY FORWARD-LOOKING STATEMENTS MADE BY US ARE NOT GUARANTEES OF FUTURE PERFORMANCE. WE DISCLAIM ANY OBLIGATION TO UPDATE ANY SUCH FACTORS OR TO ANNOUNCE PUBLICLY THE RESULTS OF ANY REVISIONS TO ANY OF THE FORWARD-LOOKING STATEMENTS TO REFLECT FUTURE EVENTS OR DEVELOPMENTS. NEIGHBORCARE HAS FILED A SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 REGARDING OMNICARE'S TENDER OFFER. NEIGHBORCARE'S SHAREHOLDERS ARE STRONGLY ADVISED TO READ CAREFULLY NEIGHBORCARE'S SOLICITATION/RECOMMENDATION STATEMENT (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS) REGARDING THE TENDER OFFER BECAUSE IT CONTAINS IMPORTANT INFORMATION. FREE COPIES OF THE SOLICITATION/RECOMMENDATION STATEMENT AND THE RELATED AMENDMENTS OR SUPPLEMENTS, WHICH HAVE BEEN FILED BY NEIGHBORCARE WITH THE SECURITIES AND EXCHANGE COMMISSION, ARE AVAILABLE AT THE SEC'S WEB SITE AT WWW.SEC.GOV, OR AT NEIGHBORCARE'S WEB SITE AT WWW.NEIGHBORCARE.COM, AND ALSO BY DIRECTING REQUESTS TO NEIGHBORCARE'S INFORMATION AGENT, MACKENZIE PARTNERS, INC., AT 1-800-322-2885 # # # 2 EX-99 3 employeeletter.txt (a)(38) [NEIGHBORCARE LOGO] July 7, 2005 Dear NeighborCare Associate, As you may have heard by now, today it was announced that NeighborCare will be acquired. Of course, many of us would have liked to remain independent, but as a public company we are bound by a fiduciary duty to look out for the best interests of NeighborCare's shareholders. Both our Board and our financial advisors believe that $34.75 per share will deliver full and fair value to our shareholders. Obviously, this has been a difficult 18 months, and there is no denying that today's announcement will ultimately affect some people more than others. However, from experience I can tell you that you should not jump to conclusions about your particular role or your future in the new environment. We need to remember why Omnicare was so persistent in their pursuit of NeighborCare. They believe, as I do, that you have created tremendous value for our customers and that our reputation for excellence and innovation will be a great benefit going forward. It is important to acknowledge that good people will be needed to continue to deliver creative solutions and value to all our customers. While at this time there are many more questions than answers about the future, we will provide you updates as more information becomes available. Management will be doing all we can to ensure a smooth integration of the two companies. Of course, prior to the close of this transaction, which we expect in 3 - 5 weeks, we must continue to conduct business as usual. We will keep you informed if there are any changes in procedures or processes. I want to thank you again for your overwhelming support and hard work. I am very proud of what we have accomplished together and you should be proud as well. I urge you now to do what you have always done, and that is to put the interests of your customers and their residents before any other considerations. Your dedication to doing this over the past year, despite all of the distractions, has been incredible. You are remarkable examples of doing what is right, regardless of the circumstances, and I thank you for your commitment and your professionalism. Sincerely, /s/ John J. Arlotta John J. Arlotta Chairman, President and Chief Executive Officer NeighborCare, Inc. 601 East Pratt Street, 3rd Floor Baltimore, Maryland, 21202-6000 TEL 410.528.7300 FAX 410.528.7447 STATEMENTS MADE IN THIS DOCUMENT, OUR WEBSITE AND IN OUR OTHER PUBLIC FILINGS AND RELEASES, WHICH ARE NOT HISTORICAL FACTS CONTAIN "FORWARD-LOOKING" STATEMENTS (AS DEFINED IN THE FEDERAL SECURITIES LAWS) THAT INVOLVE RISKS AND UNCERTAINTIES AND ARE SUBJECT TO CHANGE AT ANY TIME. THESE FORWARD-LOOKING STATEMENTS MAY INCLUDE, BUT ARE NOT LIMITED TO, STATEMENTS CONTAINING WORDS SUCH AS "ANTICIPATE," "BELIEVE," "PLAN," "ESTIMATE," "EXPECT," "INTEND," "MAY", "TARGET" AND SIMILAR EXPRESSIONS. SUCH FORWARD LOOKING STATEMENTS INCLUDE, WITHOUT LIMITATION, STATEMENTS REGARDING THE EFFECT OF THE SPIN-OFF ON OUR OPERATIONS, EXPECTED CHANGES IN REIMBURSEMENT RATES AND INFLATIONARY INCREASES IN STATE MEDICAID RATES, EXPECTED BED COUNT, EXPECTED SG&A EXPENSE, ANTICIPATED RESTRUCTURING CHARGES AND ESTIMATES OF TIMING AND COSTS SAVINGS RELATED TO COST IMPROVEMENT INITIATIVES. FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY INCLUDE, BUT ARE NOT LIMITED TO, THE FOLLOWING: COSTS, CHANGES IN THE REIMBURSEMENT RATES OR METHODS OF PAYMENT FROM MEDICARE OR MEDICAID, OR THE IMPLEMENTATION OF OTHER MEASURES TO REDUCE REIMBURSEMENT FOR OUR SERVICES; CHANGES IN PHARMACY LEGISLATION AND PAYMENT FORMULAS; THE EXPIRATION OF ENACTMENTS PROVIDING FOR ADDITIONAL GOVERNMENT FUNDING; EFFORTS OF THIRD PARTY PAYORS TO CONTROL COSTS; THE IMPACT OF FEDERAL AND STATE REGULATIONS; CHANGES IN PAYOR MIX AND PAYMENT METHODOLOGIES; FURTHER CONSOLIDATION OF MANAGED CARE ORGANIZATIONS AND OTHER THIRD PARTY PAYORS; COMPETITION IN OUR BUSINESS; AN INCREASE IN INSURANCE COSTS AND POTENTIAL LIABILITY FOR LOSSES NOT COVERED BY, OR IN EXCESS OF, OUR INSURANCE; COMPETITION FOR QUALIFIED STAFF IN THE HEALTHCARE INDUSTRY; OUR ABILITY TO CONTROL OPERATING COSTS, AND GENERATE SUFFICIENT CASH FLOW TO MEET OPERATIONAL AND FINANCIAL REQUIREMENTS; AND AN ECONOMIC DOWNTURN OR CHANGES IN THE LAWS AFFECTING OUR BUSINESS IN THOSE MARKETS IN WHICH NEIGHBORCARE OPERATES. OUR BUSINESS, OPERATIONS OR RESULTS COULD ALSO BE AFFECTED BY THE EFFECTS OF OMNICARE'S TENDER OFFER OR ITS PENDENCY ON THE COMPANY AND ITS BUSINESS, EMPLOYEES, CUSTOMERS AND SUPPLIERS. THE FORWARD-LOOKING STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS THAT ARE, IN SOME CASES, BEYOND OUR CONTROL. WE CAUTION INVESTORS THAT ANY FORWARD-LOOKING STATEMENTS MADE BY US ARE NOT GUARANTEES OF FUTURE PERFORMANCE. WE DISCLAIM ANY OBLIGATION TO UPDATE ANY SUCH FACTORS OR TO ANNOUNCE PUBLICLY THE RESULTS OF ANY REVISIONS TO ANY OF THE FORWARD-LOOKING STATEMENTS TO REFLECT FUTURE EVENTS OR DEVELOPMENTS. NEIGHBORCARE HAS FILED A SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 REGARDING OMNICARE'S TENDER OFFER. NEIGHBORCARE'S SHAREHOLDERS ARE STRONGLY ADVISED TO READ CAREFULLY NEIGHBORCARE'S SOLICITATION/RECOMMENDATION STATEMENT (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS) REGARDING THE TENDER OFFER BECAUSE IT CONTAINS IMPORTANT INFORMATION. FREE COPIES OF THE SOLICITATION/RECOMMENDATION STATEMENT AND THE RELATED AMENDMENTS OR SUPPLEMENTS, WHICH HAVE BEEN FILED BY NEIGHBORCARE WITH THE SECURITIES AND EXCHANGE COMMISSION, ARE AVAILABLE AT THE SEC'S WEB SITE AT WWW.SEC.GOV, OR AT NEIGHBORCARE'S WEB SITE AT WWW.NEIGHBORCARE.COM, AND ALSO BY DIRECTING REQUESTS TO NEIGHBORCARE'S INFORMATION AGENT, MACKENZIE PARTNERS, INC., AT 1-800-322-2885. EX-99 4 customerletter.txt (a)(39) [NEIGHBORCARE LOGO] July 7, 2005 Dear NeighborCare Customer, As you may have heard by now, today it was announced that NeighborCare will be acquired. While many of you would have liked to have seen us remain independent, as a public company we are bound by a fiduciary duty to look out for the best interests of NeighborCare's shareholders. Both our Board and our financial advisors believe that $34.75 per share delivers full and fair value to our shareholders. Clearly we are entering into a period of transition for NeighborCare. Both Omnicare and NeighborCare will be working together to make the integration of our two companies as smooth and as seamless as possible for our customers. While there may be some questions related to service and transition, I ask you to remain patient. Keep in mind that one of the reasons Omnicare was so persistent in their pursuit of NeighborCare is that they saw the tremendous value we have created for you, our customers, and our reputation for excellence and innovation. I have asked our employees to do what they have always done, and that is to put your interests and those of your residents before any other considerations. Their commitment over the past year has more than demonstrated their incredible ability to do this. They are remarkable examples of doing what is right, regardless of the circumstances. I would like to sincerely thank you for your support, especially during the last several months. We will continue to keep you updated as appropriate over the next 3-5 weeks as we complete the transaction. Please feel free to contact your various NeighborCare support contacts should you have any questions. Sincerely, /s/ John J. Arlotta John J. Arlotta Chairman, President and Chief Executive Officer NeighborCare, Inc. STATEMENTS MADE IN THIS DOCUMENT, OUR WEBSITE AND IN OUR OTHER PUBLIC FILINGS AND RELEASES, WHICH ARE NOT HISTORICAL FACTS CONTAIN "FORWARD-LOOKING" STATEMENTS (AS DEFINED IN THE FEDERAL SECURITIES LAWS) THAT INVOLVE RISKS AND UNCERTAINTIES AND ARE SUBJECT TO CHANGE AT ANY TIME. THESE FORWARD-LOOKING STATEMENTS MAY INCLUDE, BUT ARE NOT LIMITED TO, STATEMENTS CONTAINING WORDS SUCH AS "ANTICIPATE," "BELIEVE," "PLAN," "ESTIMATE," "EXPECT," "INTEND," "MAY", "TARGET" AND SIMILAR EXPRESSIONS. SUCH FORWARD LOOKING STATEMENTS INCLUDE, WITHOUT LIMITATION, STATEMENTS REGARDING THE EFFECT OF THE SPIN-OFF ON OUR 601 East Pratt Street, 3rd Floor Baltimore, Maryland, 21202-6000 TEL 410.528.7300 FAX 410.528.7447 OPERATIONS, EXPECTED CHANGES IN REIMBURSEMENT RATES AND INFLATIONARY INCREASES IN STATE MEDICAID RATES, EXPECTED BED COUNT, EXPECTED SG&A EXPENSE, ANTICIPATED RESTRUCTURING CHARGES AND ESTIMATES OF TIMING AND COSTS SAVINGS RELATED TO COST IMPROVEMENT INITIATIVES. FACTORS THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY INCLUDE, BUT ARE NOT LIMITED TO, THE FOLLOWING: COSTS, CHANGES IN THE REIMBURSEMENT RATES OR METHODS OF PAYMENT FROM MEDICARE OR MEDICAID, OR THE IMPLEMENTATION OF OTHER MEASURES TO REDUCE REIMBURSEMENT FOR OUR SERVICES; CHANGES IN PHARMACY LEGISLATION AND PAYMENT FORMULAS; THE EXPIRATION OF ENACTMENTS PROVIDING FOR ADDITIONAL GOVERNMENT FUNDING; EFFORTS OF THIRD PARTY PAYORS TO CONTROL COSTS; THE IMPACT OF FEDERAL AND STATE REGULATIONS; CHANGES IN PAYOR MIX AND PAYMENT METHODOLOGIES; FURTHER CONSOLIDATION OF MANAGED CARE ORGANIZATIONS AND OTHER THIRD PARTY PAYORS; COMPETITION IN OUR BUSINESS; AN INCREASE IN INSURANCE COSTS AND POTENTIAL LIABILITY FOR LOSSES NOT COVERED BY, OR IN EXCESS OF, OUR INSURANCE; COMPETITION FOR QUALIFIED STAFF IN THE HEALTHCARE INDUSTRY; OUR ABILITY TO CONTROL OPERATING COSTS, AND GENERATE SUFFICIENT CASH FLOW TO MEET OPERATIONAL AND FINANCIAL REQUIREMENTS; AND AN ECONOMIC DOWNTURN OR CHANGES IN THE LAWS AFFECTING OUR BUSINESS IN THOSE MARKETS IN WHICH NEIGHBORCARE OPERATES. OUR BUSINESS, OPERATIONS OR RESULTS COULD ALSO BE AFFECTED BY THE EFFECTS OF OMNICARE'S TENDER OFFER OR ITS PENDENCY ON THE COMPANY AND ITS BUSINESS, EMPLOYEES, CUSTOMERS AND SUPPLIERS. THE FORWARD-LOOKING STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER FACTORS THAT ARE, IN SOME CASES, BEYOND OUR CONTROL. WE CAUTION INVESTORS THAT ANY FORWARD-LOOKING STATEMENTS MADE BY US ARE NOT GUARANTEES OF FUTURE PERFORMANCE. WE DISCLAIM ANY OBLIGATION TO UPDATE ANY SUCH FACTORS OR TO ANNOUNCE PUBLICLY THE RESULTS OF ANY REVISIONS TO ANY OF THE FORWARD-LOOKING STATEMENTS TO REFLECT FUTURE EVENTS OR DEVELOPMENTS. NEIGHBORCARE HAS FILED A SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 REGARDING OMNICARE'S TENDER OFFER. NEIGHBORCARE'S SHAREHOLDERS ARE STRONGLY ADVISED TO READ CAREFULLY NEIGHBORCARE'S SOLICITATION/RECOMMENDATION STATEMENT (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS) REGARDING THE TENDER OFFER BECAUSE IT CONTAINS IMPORTANT INFORMATION. FREE COPIES OF THE SOLICITATION/RECOMMENDATION STATEMENT AND THE RELATED AMENDMENTS OR SUPPLEMENTS, WHICH HAVE BEEN FILED BY NEIGHBORCARE WITH THE SECURITIES AND EXCHANGE COMMISSION, ARE AVAILABLE AT THE SEC'S WEB SITE AT WWW.SEC.GOV, OR AT NEIGHBORCARE'S WEB SITE AT WWW.NEIGHBORCARE.COM, AND ALSO BY DIRECTING REQUESTS TO NEIGHBORCARE'S INFORMATION AGENT, MACKENZIE PARTNERS, INC., AT 1-800-322-2885. EX-99 5 amendment_1.txt (a)(40) AMENDMENT NO. 1 TO RIGHTS AGREEMENT THIS AMENDMENT (this "Amendment"), dated as of July 5, 2005, between NeighborCare, Inc., a Pennsylvania corporation (the "Company"), and StockTrans, Inc., as Rights Agent (the "Rights Agent"). R E C I T A L S WHEREAS, the Company and the Rights Agent are parties to a Rights Agreement, dated as of December 18, 2003 (the "Rights Agreement"); WHEREAS, the Company intends to enter into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended or supplemented from time to time, the "Merger Agreement") among the Company, Omnicare, Inc., a Delaware corporation ("Buyer"), and Nectarine Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Buyer ("Merger Sub"); WHEREAS, the Board of Directors of the Company has approved the Merger Agreement and the transactions contemplated by the Merger Agreement; and WHEREAS, pursuant to Section 27 of the Rights Agreement, for as long as the Rights are then redeemable, the Company may in its sole and absolute discretion, and the Rights Agent shall if the Company so directs, supplement or amend any provision of the Rights Agreement in accordance with the provisions of such section. All acts and things necessary to make this Amendment a valid agreement, enforceable in accordance with its terms, have been done and performed, and the execution and delivery of this Amendment by the Company has been in all respects duly authorized by the Company. NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set forth in the Rights Agreement and herein, the parties hereto agree as follows: A G R E E M E N T NOW, THEREFORE, the Rights Agreement is hereby amended as follows: 1. AMENDMENT OF SECTION 1(a). Section 1(a) of the Rights Agreement is hereby modified and amended by adding the following sentence at the end thereof: "Notwithstanding anything in this Agreement to the contrary, none of the parties to the Agreement and Plan of Merger, dated as of July 5, 2005, among the Company, Omnicare, Inc. and Nectarine Acquisition Corp. (as it may be amended or supplemented from time to time, and including all exhibits and schedules thereto (the "Merger Agreement") or any agreements reference therein, as same may be amended or supplemented from time to time), nor any of their Affiliates and Associates, shall be deemed, individually or collectively, to be an Acquiring Person by virtue of (i) the approval, execution or delivery of the Merger Agreement, (ii) the consummation of the Offer or the Merger (as defined in the Merger Agreement, including any support agreement) or (iii) the consummation of any of the other transactions contemplated by the Merger Agreement; provided, however, that nothing contained in this sentence shall prevent any one or more parties to the related agreements (including any support agreement), or any of their Affiliates or Associates, from being deemed an Acquiring Person as a result of the acquisition of additional Common Share or the taking of any action not contemplated by the Merger Agreement and related agreements." 2. AMENDMENT OF SECTION 7(a). Section 7(a) of the Rights Agreement is hereby modified, amended and restated in its entirety as follows: "The registered holder of any Right Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein), in whole or in part, at any time after the Distribution Date, upon surrender of the Right Certificate, with the form of election to purchase on the reverse side thereof duly executed, to the Rights Agent at the principal office of the Rights Agent, together with the payment of the Purchase Price for each one one-hundredth of a Preferred Share as to which the Rights are exercised, at or prior to the earliest of (i) the Close of Business on December 1, 2013 (the "Final Expiration Date"); (ii) the time at which the Rights are redeemed as provided in Section 23 hereof (the "Redemption Date"); (iii) the time at which such Rights are exchanged as provided in Section 24 hereof; or (iv) the time immediately prior to the Closing of the Merger contemplated by the Merger Agreement (the earliest of (i), (ii), (iii) and (iv) being herein referred to as the "Expiration Date)." 3. AMENDMENT OF SECTION 20. The Rights Agreement is hereby further modified and amended by adding a new Section 20(j) to the end thereof to read in its entirety as follows: "The Rights Agent shall not be subject to, nor be required to comply with, or determine if any person or entity has complied with, the Merger Agreement or any other agreement between or among the parties thereto, even though reference thereto may be made in this Agreement, or to comply with any notice, instruction, direction, request or other communication, paper or document other than as expressly set forth in this Agreement." 4. AMENDMENT OF SECTION 29. Section 29 of the Rights Agreement is hereby modified and amended to add the following sentence at the end thereof: "Nothing in this Agreement shall be construed to give any holder of Rights or any other Person any legal or equitable rights, remedies or claims under this Agreement by virtue of (i) the approval, execution or delivery of the Merger Agreement or any related agreements, (ii) the consummation of the Offer or the Merger, (iii) the consummation of any of the other transactions contemplated by the Merger Agreement and related agreements or (iv) the public announcement of any of the foregoing." 5. ADDITION OF SECTION 34. The Rights Agreement is hereby further modified and amended by adding a new Section 34 to the end thereof to read in its entirety as follows: "Section 34. MERGER AGREEMENT. Notwithstanding any other provision of this Agreement, neither the approval, execution or delivery of the Merger Agreement, or any related agreement (including any support agreement), nor the consummation of the Offer or the Merger or other related transactions contemplated by the Merger Agreement is or shall be deemed to be an event described in Section 11(a)(ii) or Section 13 hereof, nor will such performance or consummation result in the occurrence of a Share Acquisition Date, a Distribution Date or any other separation of the Rights from the underlying Common Share, nor entitle or permit the holders of the Rights to exercise the Rights or otherwise affect the rights of the holders of the Rights, including giving the holders of the Rights the right to acquire securities of any party to the Merger Agreement." 6. ADDITION OF SECTION 35. The Rights Agreement is hereby further modified and amended by adding a new Section 35 to the end thereof to read in its entirety as follows: "Section 35. TERMINATION OF THE AGREEMENT. As of the Effective Time (as defined in the Merger Agreement), this Agreement shall terminate and shall forthwith become void and have no effect, without any liability or obligation on the part of the Company, the Rights Agent or the holders of any Rights." 7. MISCELLANEOUS. (a) Except as otherwise expressly provided, or unless the context otherwise requires, capitalized terms used herein shall have the respective meanings assigned to them in the Rights Agreement. (b) This Amendment shall be deemed to be a contract made under the laws of the Commonwealth of Pennsylvania and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State. (c) This Amendment may be executed in any number of counterparts, each of which shall for all purposes be deemed to be an original, and all such counterparts shall together constitute one and the same instrument. (d) If any term, provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Amendment shall remain in full force and effect and shall in no way be affected, impaired or invalidated. It is the intent of the parties hereto to enforce the remainder of the terms, provisions, covenants and restrictions to the maximum extent permitted by law. IN WITNESS WHEREOF, this Amendment has been duly executed by the Company and the Rights Agent as of the day and year first written above. NEIGHBORCARE, INC. By: /s/ John J. Arlotta --------------------------------------- Name: John J. Arlotta Title: Chairman and CEO STOCKTRANS, INC. By: /s/ Gina Hardin --------------------------------------- Name: Gina Hardin Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----