Exhibit (a)(1)(QQQ)
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ------------------------------------------------x
DOLPHIN LIMITED PARTNERSHIP I, L.P., et al., |
|
Plaintiffs, |
|
v. |
|
| Civil Action No. 20101
|
NCS ACQUISITION CORP. and OMNICARE, INC., |
|
Defendants, |
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NOTICE OF MOTION
TO: Joseph A. Rosenthal, Esquire Robert J. Kriner, Esquire
Rosenthal, Monhait, Gross & Goddess P.A. Chimicles & Tikellis, LLP
Mellon Bank Center, Suite 1401 One Rodney Square
P.O. Box 1070 P.O. Box 551
Wilmington, DE 19899 Wilmington, DE 19899
Donald J. Wolfe, Jr., Esquire
Porter Anderson & Corroon
1313 North Market Street
P.O. Box 1347
Wilmington, Delaware 19801
PLEASE TAKE NOTICE that the attached NCS Defendants' Motion to
Intervene and Answer of the NCS Defendants in Intervention will be presented to
the Court at the earliest convenience of the Court and counsel.
/s/ Edward P. Welch
-------------------
Edward P. Welch
Edward B. Micheletti
Katherine J. Neikirk
James A. Whitney
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
One Rodney Square
P.O. Box 636
Wilmington, DE 19899
(302) 651-3000
Attorneys for Defendants NCS HealthCare,
Inc., Richard L. Osborne and Boake A. Sells
OF COUNSEL:
Mark A. Phillips
BENESCH, FRIEDLANDER, COPLAN
& ARONOFF LLP
2300 BP Tower, 200 Public Square
Cleveland, OH 44114-2378
(216) 363-4500
December 30, 2002
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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ------------------------------------------------x
DOLPHIN LIMITED PARTNERSHIP I, L.P., et al., |
|
Plaintiffs, |
|
v. |
|
| Civil Action No. 20101
|
NCS ACQUISITION CORP. and OMNICARE, INC., |
|
Defendants, |
- ------------------------------------------------x
THE NCS DEFENDANTS' MOTION TO INTERVENE
Pursuant to Court of Chancery Rules 24(a)(2) and 24(b)(2), NCS
Healthcare, Inc. ("NCS"), Boake A. Sells and Richard L. Osborne (collectively,
the "NCS Defendants") respectfully more to intervene as defendants in the
captioned case. NCS has been informed by Omnicare that it does not object to
intervention by the NCS Defendants. The grounds for the NCS Defendants' Motion
to Intervene (the "Motion to Intervene") are as follows:
1. On December 27, 2002, Plaintiffs filed a complaint and motion for a
temporary restraining order ("TRO Application") against Omnicare, Inc.
("Omnicare") and NCS Acquisition Corp., a wholly owned subsidiary of Omnicare.
In their Complaint and TRO Application, Plaintiffs seek to set aside $13,500,000
of the consideration to be
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paid to NCS stockholders as a result of the NCS/Omnicare Merger Agreement for
payment of their attorneys' fees and expenses.
2. Court of Chancery Rule 24(a)(2) provides that upon a timely
application to intervene, "anyone shall be permitted to intervene...when the
applicant claims an interest relating to the property or transaction which is
the subject of the action and the applicant is so situated that the disposition
of the action may as a practical matter impair or impede the applicant's ability
to protect that interest, unless the applicant's interest is adequately
represented by existing parties."
3. No one can seriously dispute that the Motion to Intervene is timely.
First, this Motion was filed on the business day following the day Plaintiffs
filed their complaint and TRO Application. Second, no answering briefs or
pleadings have been filed and no judicial action has been taken in connection
with the above captioned action. Granting of the Motion to Intervene will not
cause harm or prejudice or harm to any existing party. See Wilmington Trust Co.
v. Lucks, No. 98C-02-001 HDR, 1999 WL 743255, at *6 (Del. Super. June 18, 1999)
(holding motion to intervene timely because existing parties not harmed or
prejudiced by any delay in filing by proposed intervener) (attached hereto as
Exhibit A).
4. The NCS Defendants have an interest in the subject matter of the
litigation. As a party to the NCS/Omnicare Merger Agreement, NCS has an interest
in enforcing the terms of that agreement. As stockholders of NCS, Sells and
Osborne have
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an interest in seeing that they receive $5.50 per share "net to the seller in
cash" as promised by Omnicare's Supplement to the Offer to Purchase for Cash NCS
Acquisition Corp. ("December 23 Tender Offer Supplement"). (December 23 Tender
Offer Supplement at 1)
5. The NCS Defendants' interests are not adequately represented by any
existing party. Sells and Osborne are not members of the class represented by
Plaintiffs and certainly have no interest in seeing their consideration reduced
by Plaintiffs' attorneys' fees. Nor are the NCS Defendants' interests adequately
represented by Omnicare or NCS Acquisition Corp. For these reasons, the NCS
Defendants are entitled to intervene as a matter of right.
6. In the alternative, this Court should exercise its discretion to
permit the NCS Defendants to intervene in the captioned action pursuant to Court
of Chancery Rule 24(b)(2). Court of Chancery Rule 24(a)(2) provides that upon a
timely application to intervene, "anyone shall be permitted to intervene...when
an applicant's claim or defense and the main action have a question of law or
fact in common."
7. The NCS Defendants' Answer and the captioned action have questions
of law and fact in common. Plaintiffs' Complaint and TRO Application seeks to
set aside $13,500,000 of the consideration to be paid NCS stockholders. The NCS
Defendants' Answer defends on the grounds that the consideration cannot be
reduced under the terms of the NCS/Omnicare Merger Agreement, Plaintiffs have
failed to show
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they are entitled to a TRO and that Plaintiffs have not brought suit in the name
of the real party in interest. For these reasons, this Court should grant the
NCS Defendants permission to intervene into the captioned action.
WHEREFORE, the NCS Defendants request that the Court permit it to
intervene in the captioned case for all purposes.
/s/ Edward P. Welch
-------------------
Edward P. Welch
Edward B. Micheletti
Katherine J. Neikirk
James A. Whitney
SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP
One Rodney Square
P.O. Box 636
Wilmington, DE 19899
(302) 651-3000
Attorneys for Defendants NCS HealthCare,
Inc., Richard L. Osborne and Boake A. Sells
OF COUNSEL:
Mark A. Phillips
BENESCH, FRIEDLANDER, COPLAN
& ARONOFF LLP
2300 BP Tower, 200 Public Square
Cleveland, OH 44114-2378
(216) 363-4500
December 30, 2002
6
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- ------------------------------------------------x
DOLPHIN LIMITED PARTNERSHIP I, L.P., et al., |
|
Plaintiffs, |
|
v. |
|
| Civil Action No. 20101
|
NCS ACQUISITION CORP. and OMNICARE, INC., |
|
Defendants, |
- ------------------------------------------------x
ORDER
IT IS HEREBY ORDERED this ___ day of ______, 2002, that the NCS
Defendants' Motion to Intervene is granted.
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Vice Chancellor
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