SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 14D-9
(AMENDMENT NO. 19)
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. 19 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, December 12, 2002, December 16, 2002, December 18, 2002, December 23, 2002
and January 3, 2003 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 $5.50 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 18 thereto
remains unchanged.
ITEM 1. SUBJECT COMPANY INFORMATION
The last sentence of Item 1(b) is hereby amended and restated in its
entirety as follows:
As of January 6, 2003, there were 18,558,501 Class A Common Shares
outstanding and 5,193,307 Class B Common Shares outstanding.
ITEM 3. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
Item 3 of the Schedule 14D-9 is hereby amended to add the following
after the second paragraph thereof.
Omnicare Letter Agreement. As described more fully under "Item 8(a).
Additional Information - Legal Matters," on January 2, 2003, the Delaware
Chancery Court issued a temporary restraining order in the Consolidated
Shareholders Litigation requiring Omnicare and the Offeror to deposit
$13,500,000 of the funds otherwise payable to NCS stockholders in the Offer and
the Merger into escrow pending further order of the Chancery Court (the "Fee
Application Order"). These funds, which are required to be placed in escrow
within three business days following the closing of the Offer, will be used to
reimburse the stockholder-plaintiffs for attorneys' fees and expenses incurred
by them in connection with the Consolidated Shareholders Litigation, with the
amount of such reimbursement to be determined by the Chancery Court pursuant to
the Fee Application Order.
In response to the January 2, 2003 temporary restraining order, on
January 5, 2003, NCS entered into a letter agreement with Omnicare and the
Offeror (the "Letter Agreement") pursuant to which, among other things, the
parties agreed that:
- - Omnicare and the Offeror would deposit $13,500,000 (the "Escrow Fund")
into an interest-bearing escrow account, as required by the Chancery
Court's January 2nd order;
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- - subject to the approval of the Chancery Court, Omnicare would
contribute $4,500,000 of the Escrow Fund, with the remaining $9,000,000
to be deducted pro rata from the amount to be paid to the holders of
the Shares (and the holders of "in the money" options to acquire
Shares) in the Offer and the Merger;
- - if any amount of the Escrow Fund remains in the escrow account after
payment of (i) the stockholder-plaintiffs' attorneys' fees and expenses
in accordance with the Fee Application Order or any appeal therefrom
and (ii) any fees and expenses incurred in connection with the
establishment of the Escrow Fund, the excess amount will be distributed
as follows:
- any amount in excess of $11,000,000 will be distributed to
Omnicare and
- after distribution to Omnicare as provided above, if
applicable, (i) 81.82% of any remaining amount will be
distributed pro rata among the holders of the Shares
(including the holders of "in the money" options to acquire
Shares) acquired by Omnicare and the Offeror in the Offer and
the Merger and (ii) 18.18% of any remaining amount will be
distributed to Omnicare, subject to reasonable rounding;
- - Omnicare and NCS will each use their commercially reasonable efforts to
challenge the stockholder-plaintiffs' fee application to seek to reduce
the amount of the fees and expenses to be awarded to the
stockholder-plaintiffs to a reasonable amount; and
- - Omnicare and the Offeror will each reasonably cooperate in good faith
with Messrs. Boake A. Sells and Richard L. Osborne, two of the
Company's directors, in connection with Messrs. Sells' and Osborne's
challenge to the stockholder-plaintiffs' fee application and efforts to
reduce the amount of the stockholder-plaintiffs' attorneys' fees and
expenses.
The foregoing discussion includes a summary of certain terms of the
Letter Agreement, and is qualified in its entirety by the full text of the
Letter Agreement, a copy of which is filed as Exhibit 99.40 to this Statement
and is incorporated herein by reference.
ITEM 4. THE SOLICITATION OR RECOMMENDATION
(a) Position of the Board of Directors
Item 4(a) of the Schedule 14D-9 is hereby amended to add the following
at the end thereof:
At a special meeting held on January 5, 2003, the NCS Board, by a
unanimous vote of the directors present, resolved to continue to recommend that
NCS stockholders accept the Offer and tender their Shares pursuant to the Offer.
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(b) Background; Reasons for the Board's Position.
Item 4(b) of the Schedule 14D-9 is hereby amended to add the following
at the end thereof:
On January 3 and January 4, 2003, representatives of NCS engaged in
negotiations with representatives of Omnicare with respect to the $13,500,000 to
be deposited in escrow pursuant to the January 2, 2003 order of the Chancery
Court. At a special telephonic meeting of the NCS Board held on January 5, 2003,
the NCS Board, by a unanimous vote of the directors present, approved the terms
of the Letter Agreement described above under "Item 3. Past Contacts,
Transactions, Negotiations and Agreements - Omnicare Letter Agreement" and
resolved to continue to recommend that NCS stockholders accept the Offer and
tender their Shares pursuant to the Offer. The Letter Agreement was executed
later that day.
(d) Intent to Tender
Item 4(d) of the Schedule 14D-9 is hereby amended and restated in its
entirety as follows:
To the best of the Company's knowledge, each of the Company's executive
officers and directors currently intends to tender in the Offer all of the
Shares that he or she holds of record or beneficially. As a group, all of the
Company's directors and executive officers own an aggregate of 1,208,737 Class A
Common Shares and 4,810,806 Class B Common Shares.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY
Item 6 is hereby amended and restated in its entirety as follows:
On December 20, 2002, Boake A. Sells, a member of the NCS Board,
exercised vested options to purchase: (i) 13,333 Class A Common Shares at a
price of $4.25 per share; (ii) 10,000 Class A Common Shares at a price of $1.47
per share; and (iii) 11,666 Class A Common Shares at a price of $0.135 per
share. Except as set forth above, no transactions in the Shares have been
effected during the past 60 days by the Company or, to the best of the Company's
knowledge, any of the Company's directors, executive officers, affiliates or
subsidiaries.
ITEM 9. EXHIBITS
EXHIBIT NO.
Exhibit 99.40 Letter Agreement by and among Omnicare, Inc., NCS Acquisition Corp. and NCS
HealthCare, Inc., dated as of January 5, 2002. (Incorporated herein by reference
to Exhibit (d)(3) to Amendment No. 42 to Omnicare's Tender Offer Statement on
Schedule TO/A, filed on January 6, 2003.)
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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: January 6, 2003