SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 14D-9
(AMENDMENT NO. 3)
SOLICITATION/RECOMMENDATION STATEMENT UNDER
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
NCS HEALTHCARE, INC.
(Name of Subject Company)
NCS HEALTHCARE, INC.
(Name of Person Filing Statement)
CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
62887410
(CUSIP Number of Class A Common Stock)
CLASS B COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
NOT APPLICABLE
(CUSIP Number of Class B Common Stock)
MARY BETH LEVINE, ESQ.
SENIOR VICE PRESIDENT AND CORPORATE COUNSEL
NCS HEALTHCARE, INC.
3201 ENTERPRISE PARKWAY, SUITE 220
BEACHWOOD, OHIO 44122
(216) 514-3350
(Name, Address and Telephone Number of Person Authorized to Receive Notice and
Communications on Behalf of the Person Filing Statement)
WITH COPIES TO:
H. JEFFREY SCHWARTZ, ESQ. ROBERT B. PINCUS, ESQ.
MEGAN LUM MEHALKO, ESQ. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP ONE RODNEY SQUARE
2300 BP TOWER, 200 PUBLIC SQUARE WILMINGTON, DELAWARE 19801
CLEVELAND, OHIO 44114 (302) 651-3000
(216) 363-4500
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
This Amendment No. 3 to Schedule 14D-9 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 originally filed by NCS
HealthCare, Inc. (the "Company" or "NCS") on August 20, 2002 and amended on
August 21, 2002 and August 22, 2002, relating to the tender offer by NCS
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Omnicare, Inc., a Delaware corporation ("Omnicare"), for all of the outstanding
shares of Class A Common Stock, par value $0.01 per share, of NCS and Class B
Common Stock, par value $0.01 per share, of NCS, at a price of $3.50 per share,
net to the seller in cash (the "Offer"). Except as otherwise indicated, the
information set forth in the original Schedule 14D-9 and Amendments No. 1 and
No. 2 thereto remains unchanged.
ITEM 7. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
Item 7 is hereby supplemented by adding the following:
Pursuant to the Genesis Merger Agreement, NCS may engage in
discussions with a party making an Acquisition Proposal, if the NCS Board
determines that the proposal is, or is likely to result in, a Superior Proposal
and such party first executes a confidentiality agreement on terms no less
restrictive than those contained in the confidentiality agreement executed by
Genesis. Although the NCS Board has not made such a determination with respect
to the Offer and various proposals from Omnicare contemplating a merger
transaction with NCS (collectively, the "Omnicare Proposals"), at the Company's
request, Genesis and Sub provided the Company with a waiver dated September 10,
2002 (the "Waiver") from such requirements in order to permit the Company to
engage in discussions with Omnicare. The foregoing waiver of the confidentiality
agreement requirement relates solely to entering into discussions with Omnicare
and not to the furnishing of any nonpublic information. As previously disclosed,
Omnicare has been unwilling to enter into a confidentiality agreement similar to
the Genesis confidentiality agreement and, accordingly, the Company does not
currently intend to provide Omnicare with any nonpublic information.
As a result of the Waiver, the Company intends to discuss the
Omnicare Proposals with Omnicare. However, given the provisions of the Genesis
Merger Agreement and the Voting Agreements, the NCS Board believes it is
unlikely that a business combination with Omnicare may be consummated. The NCS
Board has instructed management not to disclose the specific terms of any
discussions or negotiations with Omnicare unless and until an agreement is
reached with Omnicare.
ITEM 9. EXHIBITS.
Item 9 is hereby supplemented by adding the following additional
exhibit:
EXHIBIT NO.
- -----------
Exhibit 99.1. Waiver among NCS Healthcare, Inc., Genesis Health Ventures, Inc. and
Geneva Merger Sub, Inc., dated September 10, 2002.*
- ------------
* Filed herewith.
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.
NCS HEALTHCARE, INC.
By: /s/ Kevin B. Shaw
------------------------------------
Kevin B. Shaw
President and Chief Executive
Officer
Dated: September 11, 2002