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Exhibit (a)(1)(TTT)
[LETTERHEAD OF POTTER ANDERSON & CORROON LLP]
January 2, 2003
VIA HAND DELIVERY
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The Honorable Stephen P. Lamb
Vice Chancellor
Court of Chancery
New Castle County Courthouse
500 North King Street
Wilmington, DE 19801
Re: Dolphin Limited Partnership L.L.P., et al v. NCS Acquisition Corp.
and Omnicare Inc., Del. Ch., C.A. No. 20101-NC
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Dear Vice Chancellor Lamb:
We represent defendants Omnicare Inc. ("Omnicare") and NCS Acquisition
Corp. (collectively with Omnicare, "Defendants") in the above-captioned action.
We write in response to: (a) plaintiffs' motion for a temporary restraining
order directing Defendants to deposit into an interest bearing escrow account
$13.5 million of the monies to be paid to the stockholders of NCS Healthcare,
Inc. ("NCS") pursuant to Omnicare's tender offer; and (b) the motion to
intervene and letter brief and submitted by NCS in opposition to plaintiffs'
motion. We are advised that the Court will hear plaintiffs' application this
afternoon at 2:00 p.m.
Defendants take no position with respect to the relief requested by
plaintiffs, although we note that there is no support in the papers submitted by
plaintiffs for a fee award in the extraordinary amount of $13.5 million. In
addition, if any temporary restraining order is issued, we ask that, as a
technical matter, any such order provide that Defendants shall deposit the
escrow fund into the escrow account within three (3) business days after the
closing of the Omnicare tender offer.
Defendants agree that NCS should be permitted to intervene. Defendants
do, however, oppose NCS's unsupported suggestion that this Court should order
Omnicare to pay plaintiffs' attorneys fees. As plaintiffs recognize, the common
fund doctrine requires that NCS
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The Honorable Stephen P. Lamb
January 2, 2003
Page 2
stockholders compensate plaintiffs' attorneys out of the common fund created as
a result of the litigation prosecuted by plaintiffs. See, e.g., Goodrich v. E.F.
Hutton Group, Inc., 681 A.2d 1039, 1044 (Del. 1996) (citing Boeing Co. v. Van
Gemert, Inc., 444 U.S. 472, 478 (1980)) ("common fund doctrine is founded on the
equitable principle that those who have profited from litigation should share
its costs"); United Vanguard Fund, Inc. v. Takecare, Inc., 727 A.2d 844, 850
(Del. Ch. 1998) ("where a litigant has conferred a common monetary benefit upon
an identifiable class of stockholders, all of the stockholders should contribute
to the costs of achieving that benefit") (citation omitted). Thus, for example,
in United Vanguard Fund, this Court held that the stockholder plaintiffs'
attorneys fees would properly be paid out of $4.8 million that had been withheld
from the total consideration paid by the acquiror. Id. at 847.
While it is true that on occasion successful acquirors have voluntarily
paid plaintiffs' attorneys fees, the cases cited by NCS in support of this
undisputed (and largely irrelevant) point make clear that the successful
acquiror is in no way legally obligated to do so. See, e.g., Mentor Graphics
Corp. v. Quickturn Design Sys., Inc., 789 A.2d 1216 (Del. Ch. 2001). In Mentor
Graphics, for example, the losing bidder, Mentor, sought payment of its
attorneys fees by Quickturn, the winning bidder. Although Quickturn had
ultimately agreed to pay the stockholder plaintiffs' counsel fees and expenses
up to $825,000, id. at 1221, the Court noted with approval that the stockholder
plaintiffs had pursued attorneys fees from "the proper source; i.e., the fund
itself," before it was distributed to the stockholders. Id. at 1233. The Court
thus denied Mentor's application on the grounds that it sought "fees from the
wrong party" and held that requiring the winning bidder to pay a losing bidder's
attorneys fees -- like requiring a winning bidder to pay stockholder plaintiffs'
attorneys fees -- would create a "totally unprincipled result which runs counter
to the rationale that those who receive the benefit from a shareholder's
litigative efforts should share the costs of creating that benefit." Id. Here,
the claimed benefit was conferred on the NCS stockholders.
NCS's reference to this Court's decision in In re First Interstate
Bancorp Consol. S'holder Litig., 756 A.2d 353 (Del. Ch. 1999) is similarly
misplaced. In First Interstate, the Court explicitly recognized the well-settled
principle that "in cases where plaintiffs' litigation efforts result in or
contribute to the creation of a fund distributed to a class, it is generally
appropriate that any fee award should be paid out of that fund." Id. at 362.
While the Court ultimately required, on the facts before it, that the requested
attorneys fees be paid out of the acquiring corporation's treasury, it did so
based on two factors not present here. Id. First, the merger in First Bancorp
was a stock-for-stock transaction; thus, the stockholders of the target
corporation (who received the benefit of the litigation) had become stockholders
of the acquiring corporation. Second, the merger had already been completed --
and the consideration had already been distributed; thus there was no longer any
"common fund" from which the attorneys could be paid. Accordingly, under those
facts -- which are in many ways the exact opposite of the facts in this case --
this Court "regard[ed] the assets of [the acquiror] as `being a fund belonging
to the stockholders in common'" and ordered that the acquiror pay the attorneys
fees. Id.
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The Honorable Stephen P. Lamb
January 2, 2003
Page 3
Here, by contrast, Omnicare is purchasing all NCS common stock for
$5.50 per share in cash, which consideration has not yet been distributed to NCS
stockholders. Pursuant to the order requested by plaintiffs, a portion of that
consideration would be held in escrow and plaintiffs' attorneys fees eventually
paid out of the escrowed amount. NCS's repeated assertion that, under
plaintiffs' proposal, Omnicare would somehow be "reducing the merger
consideration" or violating the terms of the merger agreement is nonsense.
Regardless of whether or not this Court issues the order requested by
plaintiffs, Omnicare will be paying out $5.50 per share -- the full
consideration contemplated by the merger agreement. In the event this Court
grants the relief requested by plaintiffs and requires Omnicare to place some
portion of that $5.50 per share in escrow, this means only that some portion of
the consideration being paid out to NCS stockholders will be available to pay
whatever fee the Court eventually determines NCS stockholders owe plaintiffs'
counsel for helping to bring that fund into existence in the first place.
Finally, NCS's assertion that the use of the phrase "$5.50 per share
net to the seller in cash" to describe the consideration to be paid to NCS
stockholders in the Offer to Purchase somehow prohibits this Court from
determining that NCS stockholders should be required to pay their lawyers out of
that consideration fails for similar reasons. As the Offer to Purchase makes
clear, "net to the seller in cash" means net of customary expenses, such as
brokerage fees or commissions. See Supplement to the Offer to Purchase, Summary
Term Sheet, Question 3 (explaining that the stockholder "will not have to pay
brokerage fees, commissions or similar expenses") (enclosed herewith). It most
decidedly does not guarantee NCS stockholders $5.50 per share net of any
conceivable liabilities, such as legal expenses, that NCS stockholders might
have. For example, the Offer to Purchase specifically refers to certain amounts
to be deducted from the $5.50 per share purchase price. See, e.g., id. (noting
that offer is $5.50 per share "less required withholding taxes"). Nor does it
(a) preclude the Court from ordering that the stockholders set aside (and
eventually use) some portion of the consideration to pay their lawyers, or (b)
shift the obligation to pay plaintiffs' counsel to Omnicare, over and above the
$5.50 per share it has agreed to pay, which would effectively increase the
consideration to NCS stockholders beyond that which Omnicare has agreed to pay.
Respectfully,
/s/ Donald J. Wolfe, Jr.
Donald J. Wolfe, Jr.
DJW/slh/564579
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