SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: August 19, 2002
Date of earliest event reported: August 1, 2002
NCS HEALTHCARE, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
00-27602 34-1816187
(Commission File No.) (IRS Employer Identification No.)
3201 Enterprise Parkway, Suite 220, Beachwood, Ohio 44122
(Address of principal executive offices, including ZIP code)
(216) 378-6800
(Registrant's telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
ITEM 5. OTHER EVENTS.
Between August 1, 2002 and August 12, 2002, two additional stockholder
lawsuits (both of which are purported class action lawsuits) were filed against
NCS HealthCare, Inc. ("NCS") and its directors, and in one case, against Genesis
Health Ventures, Inc. ("Genesis") and Geneva Sub, Inc., a wholly owned
subsidiary of Genesis ("Sub"), in connection with the Agreement and Plan of
Merger, dated July 28, 2002, among NCS, Genesis and Sub (the "Merger Agreement")
and the proposed merger of Sub with and into NCS (the "Proposed Merger"), and
one existing stockholder lawsuit was amended (the "Stockholder Claims"). The
Stockholder Claims allege that the directors of NCS breached their fiduciary
duties, and certain other duties, to stockholders by entering into the Merger
Agreement and seek various relief, including an injunction against consummation
of the Proposed Merger, requiring separate class voting on approval of the
Proposed Merger by NCS stockholders, rescinding the Proposed Merger if the same
is consummated prior to a final judgment on the Stockholder Claims, declaring
the agreements, dated July 28, 2002, with certain stockholders of NCS
beneficially owning in the aggregate a majority of the outstanding voting power
of NCS Common Stock (the "Voting Agreements") null and void, and compensatory
damages and costs. In addition, the amended stockholder complaint alleges that
the Voting Agreements violate the NCS amended and restated certificate of
incorporation and therefore resulted in an automatic conversion of such
stockholders' Class B common shares into Class A common shares. NCS does not
believe that the Stockholder Claims have merit. The foregoing descriptions of
the Stockholder Claims are qualified in their entirety by reference to the text
of the Stockholder Claims, which are attached hereto as Exhibits 99.1, 99.2 and
99.3 and are incorporated herein by reference.
The following three lawsuits were each filed with the court indicated
on the dates indicated:
1. Michael Petrovic on behalf of himself and all others similarly
situated v. NCS HealthCare, Inc., Jon H. Outcalt, Kevin B. Shaw, Richard L.
Osborne, and Boake A. Sells, filed with the Court of Common Pleas for Cuyahoga
County, Ohio on August 1, 2002.
2. Dolphin Limited Partnership, L.L.P. v. Jon H. Outcalt, Kevin B.
Shaw, Boake A. Sells, Richard L. Osborne, Genesis Health Ventures, Inc., Genesis
Sub, Inc. and NCS HealthCare, Inc., filed with the Court of Chancery of the
State of Delaware in and for New Castle County on August 7, 2002.
3. First Amended Complaint Omnicare, Inc. v. NCS HealthCare, Inc., Jon
H. Outcalt, Kevin B. Shaw, Boake A. Sells, Richard L. Osborne, Genesis Health
Ventures, Inc. and Geneva Sub, Inc., filed with the Court of Chancery of the
State of Delaware in and for New Castle County on August 12, 2002.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS, AND EXHIBITS
(c) Exhibits.
99.1 Petrovic Complaint, dated August 1, 2002.
99.2 Dolphin Complaint, dated August 7, 2002.
99.3 Amended Omnicare Complaint, dated August 12, 2002.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NCS HEALTHCARE, INC.
Dated: August 19, 2002 By: /s/ Kevin B. Shaw
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Name: Kevin B. Shaw
Title: President, Chief Executive Officer
and Director
Dated: August 19, 2002 By: /s/ William B. Byrum
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Name: William B. Byrum
Title: Executive Vice President and Chief
Operating Officer
Dated: August 19, 2002 By: /s/ Gerald D. Stethem
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Name: Gerald D. Stethem
Title: Senior Vice President and Chief
Financial Officer
EXHIBIT LIST
Exhibit No. Description
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99.1 Petrovic Complaint, dated August 1, 2002.
99.2 Dolphin Complaint, dated August 7, 2002.
99.3 Amended Omnicare Complaint, dated August 12, 2002.