SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 14D-9
(AMENDMENT NO. 15)
SOLICITATION/RECOMMENDATION STATEMENT UNDER
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
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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)
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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)
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WITH COPIES TO:
H. JEFFREY SCHWARTZ, ESQ.
MEGAN LUM MEHALKO, ESQ.
BENESCH, FRIEDLANDER, COPLAN & ARONOFF LLP
2300 BP TOWER, 200 PUBLIC SQUARE
CLEVELAND, OHIO 44114
(216) 363-4500
ROBERT B. PINCUS, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
ONE RODNEY SQUARE
WILMINGTON, DELAWARE 19801
(302) 651-3000
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
This Amendment No. 15 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, August 22, 2002, September 12, 2002, September 30, 2002,
October 8, 2002, October 22, 2002, October 29, 2002, October 30, 2002, November
25, 2002, December 2, 2002, December 5, 2002, December 9, 2002, December 11,
2002 and December 12, 2002 relating to the tender offer by NCS Acquisition Corp.
(the "Offeror"), 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
through 14 thereto remains unchanged.
ITEM 7. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
Item 7 of the Schedule 14D-9 is hereby amended to add the following at the
end thereof:
Following the December 10, 2002 order of the Delaware Supreme Court
remanding the consolidated stockholder litigation to the Delaware Chancery Court
for entry of a preliminary injunction preventing completion of the Genesis
Merger, and the December 11, 2002 order of the Chancery Court enjoining
consummation of the Genesis Merger, on December 11, 2002, NCS received a letter
from Omnicare extending the time period within which NCS could accept Omnicare's
October 6, 2002 irrevocable merger proposal (the "Acceptance Deadline Letter").
A copy of the Acceptance Deadline Letter is incorporated herein by reference as
Exhibit 99.29 to this Statement. Under the terms of the Acceptance Deadline
Letter, NCS would be able to accept Omnicare's proposed October 6th merger
agreement by signing and returning a copy of the agreement by facsimile on or
before the earliest of:
- the effective time of the Genesis Merger;
- two calendar days after the date on which:
- the Genesis Merger Agreement is terminated in accordance with
its terms;
- a "Final Order" is entered enjoining or otherwise prohibiting
the consummation of the Genesis Merger;
- NCS stockholders fail to adopt the Genesis Merger Agreement
and approve the transactions contemplated by the Genesis
Merger Agreement at a meeting called for such purpose; or
- the date of any amendment or waiver of any of the provisions of the
Genesis Merger Agreement; and
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- December 19, 2002 at 5:00 p.m. EST.
Also on December 11, 2002, representatives of Genesis contacted
representatives of NCS and offered to increase the consideration to be received
by NCS stockholders in the Genesis Merger to $3.50 per Share, payable in Genesis
common stock. Under the original terms of the Genesis Merger Agreement, NCS
stockholders would have received a fixed consideration of 0.1 shares of Genesis
common stock for each Share held. Based on the closing price of Genesis common
stock on December 1, 2002, the original Genesis Merger consideration had a value
of approximately $1.60 per Share.
In response to the December 11th Genesis proposal, on December 12, 2002
Omnicare sent a letter (the "Revised Offer Letter") to the NCS Board, a copy of
which is incorporated herein by reference as Exhibit 99.30 to this Statement,
amending the terms of Omnicare's October 6th irrevocable merger proposal. Under
the terms of the Revised Offer Letter, NCS stockholders would receive $5.50 per
Share net to the seller in cash. The Revised Offer Letter attached an executed
merger agreement (the "Omnicare Merger Agreement") which, if signed by NCS,
would require Omnicare to amend the Offer to provide for the terms set forth in
the Omnicare Merger Agreement, including the increased consideration of $5.50
per Share. By its terms, the Revised Offer Letter would remain irrevocable until
the earlier of, the happening of the events specified in the Acceptance Deadline
Letter and December 20, 2002. The Omnicare Merger Agreement is substantially
similar to the merger agreement attached to Omnicare's October 6th proposal,
except that the agreement provides for the payment of $5.50 per Share and the
payment by NCS to Omnicare of an $8.8 million termination fee in the event of
termination of that agreement under certain circumstances. This summary of the
material terms of the Omnicare Merger Agreement is not complete and is qualified
in its entirety by the full text of the Omnicare Merger Agreement, a copy of
which is incorporated herein by reference as Exhibit 99.31.
In light of the December 10, 2002 order of the Delaware Supreme Court, and
given the desire of the NCS Board to maximize value for stockholders and cause
as little disruption to its stakeholders as possible, on December 13, 2002, the
NCS Board established bidding procedures that were intended to provide for a
fair and orderly process and elicit the highest and best offers for the Company
by 6:00 p.m. on Sunday, December 15, 2002. These bidding procedures which were
sent to counsel for Genesis and Omnicare are attached hereto as Exhibit 99.32
and incorporated herein by reference.
Notwithstanding the efforts of the NCS Board to establish a fair and
orderly auction process, on December 15, 2002, shortly after the deadline for
final bids, NCS was informed that Genesis and Omnicare had entered into a
settlement agreement pursuant to which, among other things:
- Omnicare would pay Genesis a fee of $22 million;
- Omnicare and Genesis would terminate any pending litigation and
provide full mutual releases of all claims; and
- Genesis would terminate the Genesis Merger Agreement, purportedly as
a result of the Company's failure to hold the stockholder meeting to
approve the Genesis Merger Agreement within four months of the date
of execution of
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the Genesis Merger Agreement, as permitted by Section 7.1(g) of the
agreement.
Given the termination of the Genesis Merger Agreement, NCS is currently
considering the Omnicare Revised Offer Letter and the proposed Omnicare Merger
Agreement in light of current circumstances. Assuming Genesis terminates the
Merger Agreement on December 16, 2002, the Company believes that the Omnicare
Revised Offer Letter will remain outstanding until Wednesday, December 18, 2002.
ITEM 9. EXHIBITS
Item 9 of the Schedule 14D-9 is hereby supplemented by adding the
following additional exhibits:
EXHIBIT NO.
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Exhibit 99.29 Letter from Omnicare to the NCS Board of Directors,
dated as of December 11, 2002. (Incorporated herein by
reference to Item 5 of Amendment No. 33 to Omnicare's Tender
Offer Statement on Schedule TO/A, filed on December 12, 2002.)
Exhibit 99.30 Letter from Omnicare to the NCS Board of Directors,
dated as of December 12, 2002. (Incorporated herein by
reference to Item 5 of Amendment No. 34 to Omnicare's Tender
Offer Statement on Schedule TO/A, filed on December 13, 2002.)
Exhibit 99.31 Form of Agreement and Plan of Merger by and among Omnicare,
Inc., NCS Acquisition Corp. and NCS HealthCare, Inc., dated as
of December __, 2002. (Incorporated herein by reference to
Exhibit (a)(5)(C) to Amendment No. 34 to Omnicare's Tender
Offer Statement on Schedule TO/A, filed on December 13, 2002.)
Exhibit 99.32 Letter from NCS to Genesis and Omnicare regarding Bidding
Procedures, dated as of December 13, 2002. (Incorporated
herein by reference to Exhibit (a)(1)(EEE) to Amendment No. 35
to Omnicare's Tender Offer Statement on Schedule TO/A, filed
on December 16, 2002.)
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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
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Kevin B. Shaw
President and Chief Executive Officer
Dated: December 16, 2002