UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 


 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934

 

Date of Report (Date of earliest event reported): July 29, 2015

 


 

Omnicare, Inc.

(Exact name of Registrant as specified in its Charter)

 

Delaware

(State or Other Jurisdiction of Incorporation or Organization)

 

1-8269

 

31-1001351

(Commission File Number)

 

(I.R.S. Employer Identification No.)

 

900 Omnicare Center

201 East Fourth Street

Cincinnati, OH 45202

(Address of Principal Executive Offices, Including Zip Code)

 

(513) 719-2600

(Registrant’s telephone number, including area code)

 

Not applicable

(Former name and former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

x Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Item 8.01.             Other Events.

 

On July 29, 2015, Omnicare, Inc., a Delaware corporation (“Omnicare”), provided a notice to holders of each of its 3.75% Convertible Senior Subordinated Notes due 2025, 3.50% Convertible Senior Subordinated Notes due 2044, 3.25% Convertible Senior Debentures due 2035, 3.25% Convertible Senior Exchange Debentures due 2035, 4.00% Junior Subordinated Convertible Debentures due 2033 (and the related Trust Preferred Equity Income Redeemable Securities) and Series B 4.00% Junior Subordinated Convertible Debentures due 2033 (and the related Trust Preferred Equity Income Redeemable Securities) as required by the terms of such securities in connection with the previously announced Agreement and Plan of Merger, dated as of May 20, 2015, by and among Omnicare, CVS Pharmacy, Inc. (“CVS Pharmacy”) and Tree Merger Sub, Inc., a wholly owned subsidiary of CVS Pharmacy.  Copies of the notices are filed as Exhibit 99.1, Exhibit 99.2, Exhibit 99.3, Exhibit 99.4, Exhibit 99.5 and Exhibit 99.6 to this Current Report on Form 8-K and are incorporated herein by reference.

 

Cautionary Statement Regarding Forward-Looking Statements

 

Certain statements in this communication may constitute “forward-looking statements” within the meaning of the federal securities laws.  By their nature, all forward-looking statements involve risks and uncertainties.  Actual results may differ materially from those contemplated by the forward-looking statements for a number of reasons as described in our U.S. Securities and Exchange Commission (“SEC”) filings, including those set forth in the Risk Factors section and under the section entitled “Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995 Regarding Forward-Looking Information” in our most recently filed Annual Report on Form 10-K and Quarterly Report on Form 10- Q. These forward-looking statements may be identified by words such as “believes”, “expects”, “anticipates”, “projects”, “intends”, “should”, “seeks”, “estimates”, “future” or similar expressions or by discussion of, among other things, strategy, goals, plans or intentions. The factors that could cause actual results to differ materially include the following: the possibility that the anticipated synergies and other benefits from the proposed merger of CVS Health and Omnicare will not be realized, or will not be realized within the expected time periods; the inability to obtain regulatory approvals of the proposed merger (including the approval of antitrust authorities necessary to complete the proposed merger) on the terms desired or anticipated; the timing of such approvals and the risk that such approvals may result in the imposition of conditions that could adversely affect the combined company or the expected benefits of the proposed merger; the risk that a condition to closing the proposed merger may not be satisfied on a timely basis or at all; the risk that the proposed merger fails to close for any other reason; the risks and uncertainties related to CVS Health’s ability to successfully integrate the operations, products and employees of CVS Health and Omnicare; the effect of the potential disruption of management’s attention from ongoing business operations due to the pending merger; the effect of the announcement of the proposed merger on CVS Health’s and Omnicare’s relationships with their respective customers, vendors and lenders and on their respective operating results and businesses generally; access to available financing on a timely basis and on reasonable terms; the outcome of any legal proceedings related to the proposed merger; and the risks and uncertainties normally incidental to the long-term healthcare and pharmaceutical industries. The foregoing review of factors should not be construed as exhaustive and should be read in conjunction with other cautionary statements that are included elsewhere, including in Omnicare’s periodic reports filed with the SEC. Copies of these filings, as well as subsequent filings, are available online at www.sec.gov and www.omnicare.com or on request from Omnicare. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. Except as otherwise required by law, Omnicare does not undertake any obligation to publicly release any revisions to these forward-looking statements to reflect events or circumstances after the date hereof or to reflect the occurrence of unanticipated events.

 

2



 

Additional Information and Where to Find It

 

This communication may be deemed to be solicitation material in respect of the proposed acquisition of Omnicare, Inc. by CVS Pharmacy, Inc., a wholly owned subsidiary of CVS Health Corporation.  In connection with the proposed merger, Omnicare filed a definitive proxy statement on Schedule 14A with the SEC on July 20, 2015 and mailed the definitive proxy statement and a proxy card to each stockholder entitled to vote at the special meeting relating to the proposed merger. Omnicare intends to file other relevant materials, if any, with the SEC.  INVESTORS AND STOCKHOLDERS ARE ADVISED TO READ THESE MATERIALS (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE BEFORE MAKING ANY VOTING OR INVESTMENT DECISIONS WITH RESPECT TO THE PROPOSED MERGER BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER. Investors and security holders are able to obtain the proxy statement, any amendments or supplements thereto and other relevant documents (when they become available) free of charge at the SEC’s web site, http://www.sec.gov. In addition, Omnicare’s investors and security holders also may obtain free copies of the documents filed with the SEC through the Investors section of Omnicare’s website, www.omnicare.com, or by contacting Omnicare’s Investor Relations Department by telephone at (513) 719-1507 or by e-mail at investor.relations@omnicare.com.

 

Participants in Solicitation

 

Omnicare and its directors and executive officers may be deemed to be participants in the solicitation of proxies from the holders of Omnicare common stock in connection with the proposed merger. Information about the directors and executive officers of Omnicare is set forth in the proxy statement for Omnicare’s 2015 Annual Meeting of Stockholders, which was filed with the SEC on April 17, 2015. Additional information regarding potential participants in such proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, was included in the definitive proxy statement filed with the SEC on July 20, 2015.

 

Item 9.01.             Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit Number

 

Description of Exhibit

 

 

 

99.1

 

Notice to holders of Omnicare, Inc.’s 3.75% Convertible Senior Subordinated Notes due 2025.

 

 

 

99.2

 

Notice to holders of Omnicare, Inc.’s 3.50% Convertible Senior Subordinated Notes due 2044.

 

 

 

99.3

 

Notice to holders of Omnicare, Inc.’s 3.25% Convertible Senior Debentures due 2035.

 

 

 

99.4

 

Notice to holders of Omnicare, Inc.’s 3.25% Convertible Senior Exchange Debentures due 2035.

 

 

 

99.5

 

Notice to holders of Omnicare, Inc.’s 4.00% Junior Subordinated Convertible Debentures due 2033 and Omnicare Capital Trust I’s Trust Preferred Equity Income Redeemable Securities.

 

 

 

99.6

 

Notice to holders of Omnicare, Inc.’s Series B 4.00% Junior Subordinated Convertible Debentures due 2033 and Omnicare Capital Trust II’s Trust Preferred Equity Income Redeemable Securities.

 

3



 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, Omnicare, Inc. has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

OMNICARE, INC.

 

 

 

 

By:

/s/ Alexander M. Kayne

 

 

Name:

Alexander M. Kayne

 

 

Title:

Senior Vice President,
General Counsel and Secretary

 

Dated: July 29, 2015

 

4



 

EXHIBIT INDEX

 

Exhibit Number

 

Description of Exhibit

 

 

 

99.1

 

Notice to holders of Omnicare, Inc.’s 3.75% Convertible Senior Subordinated Notes due 2025.

 

 

 

99.2

 

Notice to holders of Omnicare, Inc.’s 3.50% Convertible Senior Subordinated Notes due 2044.

 

 

 

99.3

 

Notice to holders of Omnicare, Inc.’s 3.25% Convertible Senior Debentures due 2035.

 

 

 

99.4

 

Notice to holders of Omnicare, Inc.’s 3.25% Convertible Senior Exchange Debentures due 2035.

 

 

 

99.5

 

Notice to holders of Omnicare, Inc.’s 4.00% Junior Subordinated Convertible Debentures due 2033 and Omnicare Capital Trust I’s Trust Preferred Equity Income Redeemable Securities.

 

 

 

99.6

 

Notice to holders of Omnicare, Inc.’s Series B 4.00% Junior Subordinated Convertible Debentures due 2033 and Omnicare Capital Trust II’s Trust Preferred Equity Income Redeemable Securities.

 

5




Exhibit 99.1

 

NOTICE OF ANTICIPATED FUNDAMENTAL CHANGE

AND

ABILITY TO CONVERT NOTES

TO

HOLDERS OF 3.75% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2025

OF

OMNICARE, INC.

 

CUSIP Number 681904 AN8(1)

 

To the Holders of the 3.75% Convertible Senior Subordinated Notes due 2025 (the “Notes”) of Omnicare, Inc. (the “Company”):

 

The Company, the guarantors party thereto and U.S. Bank National Association, a national banking organization organized under the laws of the United States, as successor trustee to SunTrust Bank, as trustee (the “Trustee”), are parties to that certain Seventh Supplemental Indenture, dated as of December 7, 2010 (the “Supplemental Indenture”), supplementing that certain Indenture, dated as of June 13, 2003 (together with the Supplemental Indenture, the “Indenture”), concerning the Notes. This Notice is being given solely pursuant to the requirements of Sections 12.01(c) and 12.03(f) of the Supplemental Indenture and for no other purpose. Capitalized terms used but not otherwise defined in this Notice have the meanings ascribed to such terms in the Indenture.

 

The Company has entered into an Agreement and Plan of Merger, dated as of May 20, 2015 (the “Merger Agreement”), by and among the Company, CVS Pharmacy, Inc. (“CVS Pharmacy”) and Tree Merger Sub, Inc., a wholly owned subsidiary of CVS Pharmacy (“Merger Sub”), providing for the merger of Merger Sub with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of CVS Pharmacy. The Merger Agreement provides that, on the terms and subject to the conditions set forth in the Merger Agreement, each share of the Company’s common stock, par value $1.00 per share (the “Common Stock”), issued and outstanding immediately prior to the effective time of the Merger (other than certain excluded shares of the Common Stock) will be automatically canceled and converted into the right to receive $98.00 in cash, without interest and less any applicable withholding taxes (the “Merger Consideration”). It is expected that, following the effective date of the Merger, CVS Pharmacy will beneficially own more than fifty percent (50%) of the Company’s Common Stock entitled to vote and, as a result, that the Merger will constitute a Fundamental Change and a Non-Stock Change of Control, each as defined in Section 1.01 of the Supplemental Indenture.

 


(1) The CUSIP numbers are included solely for the convenience of the Holders of Notes. Neither the Company nor the Trustee shall be responsible for the selection or use of the CUSIP numbers, nor is any representation made as to its correctness with respect to the Notes or as indicated in this Notice.

 



 

In accordance with the requirements of the Indenture, the Company hereby notifies Holders of the Notes that, solely for purposes of the Indenture, the anticipated effective date of the Merger may be August 18, 2015, which is the date of the Company’s stockholder meeting. The Merger remains subject to various conditions, including, without limitation, the adoption of the Merger Agreement by the Company’s stockholders and the receipt of all required regulatory approvals, which have not yet been received. No assurances can be given as to whether stockholder approval or regulatory approval will be received, or whether, if received, such approvals will be received on or prior to such date. Accordingly, no assurance can be given as to the actual effective date of the Merger.

 

Pursuant to Section 12.04 of the Supplemental Indenture, after the consummation of the Merger, each Holder shall be entitled to convert the Notes only into the amount of Merger Consideration receivable by a holder of a number of shares of the Common Stock equal to a fraction whose denominator is one thousand dollars ($1,000) and whose numerator is the product of the principal amount of such Notes and the Conversion Rate in effect immediately prior to the effective date of the Merger.

 

The Merger Consideration exceeds the price limit of $96.80 per share (as adjusted in accordance with the Indenture) established by Section 12.03(f) of the Supplemental Indenture.  Therefore, the Non-Stock Change of Control Applicable Increase will be zero (0) and there will be no corresponding adjustment to the Conversion Rate.

 

This Notice is not an offer to repurchase Notes by the Company and does not give any Holder the right to have its Notes repurchased by the Company pursuant to Section 4.02 of the Supplemental Indenture. Such a repurchase right will only arise upon the consummation of a Fundamental Change, and the Company will send a further notice of a Holder’s repurchase right on or before the twentieth (20th) calendar day after the occurrence of a Fundamental Change in accordance with Article IV of the Supplemental Indenture.

 

This Notice is being given solely pursuant to the requirements of Sections 12.01(c) and 12.03(f) of the Supplemental Indenture and for no other purpose. Holders of the Notes should refer to the Supplemental Indenture for a complete description of the conversion rights and procedures applicable to the conversion of the Notes and direct any questions concerning this notice to the Trustee by calling U.S. Bank National Association at (800) 934-6802.

 




Exhibit 99.2

 

NOTICE OF ANTICIPATED FUNDAMENTAL CHANGE

AND

ABILITY TO CONVERT NOTES

TO

HOLDERS OF 3.50% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2044

OF

OMNICARE, INC.

 

CUSIP Number 681904 AQ1(1)

 

To the Holders of the 3.50% Convertible Senior Subordinated Notes due 2044 (the “Notes”) of Omnicare, Inc. (the “Company”):

 

The Company, the guarantors party thereto and U.S. Bank National Association, a national banking organization organized under the laws of the United States, as successor trustee to SunTrust Bank, as trustee (the “Trustee”), are parties to that certain Ninth Supplemental Indenture, dated as of August 28, 2013 (the “Supplemental Indenture”), supplementing that certain Indenture, dated as of June 13, 2003 (together with the Supplemental Indenture, the “Indenture”), concerning the Notes. This Notice is being given solely pursuant to the requirements of Sections 12.01(c) and 12.03(f) of the Supplemental Indenture and for no other purpose. Capitalized terms used but not otherwise defined in this Notice have the meanings ascribed to such terms in the Indenture.

 

The Company has entered into an Agreement and Plan of Merger, dated as of May 20, 2015 (the “Merger Agreement”), by and among the Company, CVS Pharmacy, Inc. (“CVS Pharmacy”) and Tree Merger Sub, Inc., a wholly owned subsidiary of CVS Pharmacy (“Merger Sub”), providing for the merger of Merger Sub with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of CVS Pharmacy. The Merger Agreement provides that, on the terms and subject to the conditions set forth in the Merger Agreement, each share of the Company’s common stock, par value $1.00 per share (the “Common Stock”), issued and outstanding immediately prior to the effective time of the Merger (other than certain excluded shares of the Common Stock) will be automatically canceled and converted into the right to receive $98.00 in cash, without interest and less any applicable withholding taxes (the “Merger Consideration”). It is expected that, following the effective date of the Merger, CVS Pharmacy will beneficially own more than fifty percent (50%) of the Company’s Common Stock entitled to vote and, as a result, that the Merger will constitute a Fundamental Change and a Non-Stock Change of Control, each as defined in Section 1.01 of the Supplemental Indenture.

 


(1) The CUSIP numbers are included solely for the convenience of the Holders of Notes. Neither the Company nor the Trustee shall be responsible for the selection or use of the CUSIP numbers, nor is any representation made as to its correctness with respect to the Notes or as indicated in this Notice.

 



 

In accordance with the requirements of the Indenture, the Company hereby notifies Holders of the Notes that, solely for purposes of the Indenture, the anticipated effective date of the Merger may be August 18, 2015, which is the date of the Company’s stockholder meeting. The Merger remains subject to various conditions, including, without limitation, the adoption of the Merger Agreement by the Company’s stockholders and the receipt of all required regulatory approvals, which have not yet been received. No assurances can be given as to whether stockholder approval or regulatory approval will be received, or whether, if received, such approvals will be received on or prior to such date. Accordingly, no assurance can be given as to the actual effective date of the Merger.

 

Pursuant to Section 12.04 of the Supplemental Indenture, after the consummation of the Merger, each Holder shall be entitled to convert the Notes only into the amount of Merger Consideration receivable by a holder of a number of shares of the Common Stock equal to a fraction whose denominator is one thousand dollars ($1,000) and whose numerator is the product of the principal amount of such Notes and the Conversion Rate in effect immediately prior to the effective date of the Merger. Furthermore, pursuant to Section 12.03(f) of the Supplemental Indenture, the Conversion Rate applicable to the conversion shall, for Notes that are converted during the Non-Stock Change of Control Period (as described below), be increased by the Applicable Increase determined by reference to the table set forth in Section 12.03(f) of the Supplemental Indenture.

 

The Non-Stock Change of Control Period begins on the Business Day following the effective date of the Merger and ends at 5:00 p.m., New York City time, on the Business Day immediately preceding the Fundamental Change Repurchase Date. The Fundamental Change Repurchase Date shall be no earlier than twenty (20) calendar days nor later than thirty-five (35) calendar days following the date on which the Fundamental Change Repurchase Right Notice is mailed.

 

This Notice is not an offer to repurchase Notes by the Company and does not give any Holder the right to have its Notes repurchased by the Company pursuant to Section 4.02 of the Supplemental Indenture. Such a repurchase right will only arise upon the consummation of a Fundamental Change, and the Company will send a further notice of a Holder’s repurchase right on or before the twentieth (20th) calendar day after the occurrence of a Fundamental Change in accordance with Article IV of the Supplemental Indenture.

 

This Notice is being given solely pursuant to the requirements of Sections 12.01(c) and 12.03(f) of the Supplemental Indenture and for no other purpose. Holders of the Notes should refer to the Supplemental Indenture for a complete description of the conversion rights and procedures applicable to the conversion of the Notes and direct any questions concerning this notice to the Trustee by calling U.S. Bank National Association at (800) 934-6802.

 




Exhibit 99.3

 

NOTICE OF ANTICIPATED FUNDAMENTAL CHANGE

AND

ABILITY TO CONVERT DEBENTURES

TO

HOLDERS OF 3.25% CONVERTIBLE SENIOR DEBENTURES DUE 2035

OF

OMNICARE, INC.

 

CUSIP Number 681904 AL2(1)

 

To the Holders of the 3.25% Convertible Senior Debentures due 2035 (the “Debentures”) of Omnicare, Inc. (the “Company”):

 

The Company, Omnicare Purchasing Company, L.P., as guarantor, and U.S. Bank National Association, as successor to SunTrust Bank, as trustee (the “Trustee”), are parties to that certain Indenture, dated as of December 15, 2005 (the “Indenture”), concerning the Debentures. This Notice is being given solely pursuant to the requirements of Sections 9.1(b)(6), 9.3(h) and 9.6 of the Indenture and for no other purpose. Capitalized terms used but not otherwise defined in this Notice have the meanings ascribed to such terms in the Indenture.

 

The Company has entered into an Agreement and Plan of Merger, dated as of May 20, 2015 (the “Merger Agreement”), by and among the Company, CVS Pharmacy, Inc. (“CVS Pharmacy”) and Tree Merger Sub, Inc., a wholly owned subsidiary of CVS Pharmacy (“Merger Sub”), providing for the merger of Merger Sub with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of CVS Pharmacy. The Merger Agreement provides that, on the terms and subject to the conditions set forth in the Merger Agreement, each share of the Company’s common stock, par value $1.00 per share (the “Common Stock”), issued and outstanding immediately prior to the effective time of the Merger (other than certain excluded shares of the Common Stock) will be automatically canceled and converted into the right to receive $98.00 in cash, without interest and less any applicable withholding taxes (the “Merger Consideration”). It is expected that, following the effective date of the Merger, CVS Pharmacy will beneficially own more than fifty percent (50%) of the Company’s Common Stock entitled to vote and, as a result, that the Merger will constitute a Fundamental Change and a Non-Stock Change of Control, as defined in Sections 3.10(a)(1) and 9.3(h), respectively, of the Indenture.

 

In accordance with the requirements of the Indenture, the Company hereby notifies Holders of the Debentures that, solely for purposes of the Indenture, the anticipated effective date of the Merger may be August 18, 2015, which is the date of the Company’s stockholder meeting. The Merger remains subject to various conditions, including, without limitation, the adoption of the

 


(1) The CUSIP numbers are included solely for the convenience of the Holders of Debentures. Neither the Company nor the Trustee shall be responsible for the selection or use of the CUSIP numbers, nor is any representation made as to its correctness with respect to the Debentures or as indicated in this Notice.

 



 

Merger Agreement by the Company’s stockholders and the receipt of all required regulatory approvals, which have not yet been received. No assurances can be given as to whether stockholder approval or regulatory approval will be received, or whether, if received, such approvals will be received on or prior to such date. Accordingly, no assurance can be given as to the actual effective date of the Merger.

 

Pursuant to Sections 9.2(f) and 9.4 of the Indenture, after the consummation of the Merger, each Holder shall be entitled to convert the Debentures only into the amount of Merger Consideration which such Holder would have been entitled to receive upon the Merger had such Debentures been converted solely into Common Stock based upon the applicable Conversion Rate immediately prior to the effective time of the Merger. Furthermore, pursuant to Sections 9.2(f) and 9.3(h) of the Indenture, the Conversion Rate applicable to the conversion shall, for Debentures converted in connection with a Non-Stock Change of Control (as described below), be increased by the number of shares of Common Stock determined by reference to the table set forth in Section 9.3(h) of the Indenture.

 

A conversion of Debentures will be deemed for these purposes to be “in connection with” a Non-Stock Change of Control if the conversion notice is received by the Conversion Agent following the effective date of the Merger but before 5:00 p.m., New York City time, on the Business Day immediately preceding the related Fundamental Change Purchase Date. The Fundamental Change Purchase Date shall be no earlier than twenty (20) days nor later than thirty-five (35) days after the date of a notice of Fundamental Change delivered by the Company.

 

This Notice is not an offer to purchase Debentures by the Company and does not give any Holder the right to have its Debentures purchased by the Company pursuant to Section 3.10 of the Indenture. Such a purchase right will only arise upon the consummation of a Fundamental Change, and the Company will send a further notice of a Holder’s purchase right no later than ten (10) days after the occurrence of a Fundamental Change in accordance with Article III of the Indenture.

 

This Notice is being given solely pursuant to the requirements of Sections 9.1(b)(6), 9.3(h) and 9.6 of the Indenture and for no other purpose. Holders of the Debentures should refer to the Indenture for a complete description of the conversion rights and procedures applicable to the conversion of the Debentures and direct any questions concerning this notice to the Trustee by calling U.S. Bank National Association at (800) 934-6802.

 




Exhibit 99.4

 

NOTICE OF ANTICIPATED FUNDAMENTAL CHANGE

AND

ABILITY TO CONVERT DEBENTURES

TO

HOLDERS OF 3.25% CONVERTIBLE SENIOR EXCHANGE DEBENTURES DUE 2035

OF

OMNICARE, INC.

 

CUSIP Number 681904 AR9(1)

 

To the Holders of the 3.25% Convertible Senior Exchange Debentures due 2035 (the “Debentures”) of Omnicare, Inc. (the “Company”):

 

The Company, Omnicare Purchasing Company, L.P., as guarantor, and U.S. Bank National Association, as trustee (the “Trustee”), are parties to that certain Indenture, dated as of November 5, 2014 (the “Indenture”), concerning the Debentures. This Notice is being given solely pursuant to the requirements of Sections 9.1(b)(6), 9.3(h) and 9.6 of the Indenture and for no other purpose. Capitalized terms used but not otherwise defined in this Notice have the meanings ascribed to such terms in the Indenture.

 

The Company has entered into an Agreement and Plan of Merger, dated as of May 20, 2015 (the “Merger Agreement”), by and among the Company, CVS Pharmacy, Inc. (“CVS Pharmacy”) and Tree Merger Sub, Inc., a wholly owned subsidiary of CVS Pharmacy (“Merger Sub”), providing for the merger of Merger Sub with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of CVS Pharmacy. The Merger Agreement provides that, on the terms and subject to the conditions set forth in the Merger Agreement, each share of the Company’s common stock, par value $1.00 per share (the “Common Stock”), issued and outstanding immediately prior to the effective time of the Merger (other than certain excluded shares of the Common Stock) will be automatically canceled and converted into the right to receive $98.00 in cash, without interest and less any applicable withholding taxes (the “Merger Consideration”). It is expected that, following the effective date of the Merger, CVS Pharmacy will beneficially own more than fifty percent (50%) of the Company’s Common Stock entitled to vote and, as a result, that the Merger will constitute a Fundamental Change and a Non-Stock Change of Control, as defined in Sections 3.10(a)(1) and 9.3(h), respectively, of the Indenture.

 

In accordance with the requirements of the Indenture, the Company hereby notifies Holders of the Debentures that, solely for purposes of the Indenture, the anticipated effective date of the Merger may be August 18, 2015, which is the date of the Company’s stockholder meeting. The Merger remains subject to various conditions, including, without limitation, the adoption of the

 


(1) The CUSIP numbers are included solely for the convenience of the Holders of Debentures. Neither the Company nor the Trustee shall be responsible for the selection or use of the CUSIP numbers, nor is any representation made as to its correctness with respect to the Debentures or as indicated in this Notice.

 



 

Merger Agreement by the Company’s stockholders and the receipt of all required regulatory approvals, which have not yet been received. No assurances can be given as to whether stockholder approval or regulatory approval will be received, or whether, if received, such approvals will be received on or prior to such date. Accordingly, no assurance can be given as to the actual effective date of the Merger.

 

Pursuant to Sections 9.2(f) and 9.4 of the Indenture, after the consummation of the Merger, each Holder shall be entitled to convert the Debentures only into the amount of Merger Consideration which such Holder would have been entitled to receive upon the Merger had such Debentures been converted solely into Common Stock based upon the applicable Conversion Rate immediately prior to the effective time of the Merger. Furthermore, pursuant to Sections 9.2(f) and 9.3(h) of the Indenture, the Conversion Rate applicable to the conversion shall, for Debentures converted in connection with a Non-Stock Change of Control (as described below), be increased by the number of shares of Common Stock determined by reference to the table set forth in Section 9.3(h) of the Indenture.

 

A conversion of Debentures will be deemed for these purposes to be “in connection with” a Non-Stock Change of Control if the conversion notice is received by the Conversion Agent following the effective date of the Merger but before 5:00 p.m., New York City time, on the Business Day immediately preceding the related Fundamental Change Purchase Date. The Fundamental Change Purchase Date shall be no earlier than twenty (20) days nor later than thirty-five (35) days after the date of a notice of Fundamental Change delivered by the Company.

 

This Notice is not an offer to purchase Debentures by the Company and does not give any Holder the right to have its Debentures purchased by the Company pursuant to Section 3.10 of the Indenture. Such a purchase right will only arise upon the consummation of a Fundamental Change, and the Company will send a further notice of a Holder’s purchase right no later than ten (10) days after the occurrence of a Fundamental Change in accordance with Article III of the Indenture.

 

This Notice is being given solely pursuant to the requirements of Sections 9.1(b)(6), 9.3(h) and 9.6 of the Indenture and for no other purpose. Holders of the Debentures should refer to the Indenture for a complete description of the conversion rights and procedures applicable to the conversion of the Debentures and direct any questions concerning this notice to the Trustee by calling U.S. Bank National Association at (800) 934-6802.

 




Exhibit 99.5

 

NOTICE OF ANTICIPATED CHANGE OF CONTROL

AND

ABILITY TO CONVERT DEBENTURES

TO

HOLDERS OF

4.00% JUNIOR SUBORDINATED CONVERTIBLE DEBENTURES DUE 2033

OF

OMNICARE, INC.

AND

HOLDERS OF TRUST PREFERRED EQUITY INCOME REDEEMABLE SECURITIES

OF

OMNICARE CAPITAL TRUST I

 

CUSIP Number 682100ZA1 (Debentures) and 68214L201 (Trust PIERS)(1)

 

To the Holders of the 4.00% Junior Subordinated Convertible Debentures due 2033 (the “Debentures”) of Omnicare, Inc. (the “Company”) and Holders of Trust Preferred Equity Income Redeemable Securities of Omnicare Capital Trust I (the “Trust PIERS”):

 

The Company and U.S. Bank National Association, a national banking organization organized under the laws of the United States, as successor trustee to SunTrust Bank, as trustee (the “Trustee”), are parties to that certain Second Supplemental Indenture, dated as of June 13, 2003 (the “Supplemental Indenture”), supplementing that certain Indenture, dated as of June 13, 2003 (together with the Supplemental Indenture, the “Indenture”), concerning the Debentures. This Notice is being given solely pursuant to the requirements of Section 7.10 of the Supplemental Indenture and for no other purpose. Capitalized terms used but not otherwise defined in this Notice have the meanings ascribed to such terms in the Indenture.

 

The Company has entered into an Agreement and Plan of Merger, dated as of May 20, 2015 (the “Merger Agreement”), by and among the Company, CVS Pharmacy, Inc. (“CVS Pharmacy”) and Tree Merger Sub, Inc., a wholly owned subsidiary of CVS Pharmacy (“Merger Sub”), providing for the merger of Merger Sub with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of CVS Pharmacy. The Merger Agreement provides that, on the terms and subject to the conditions set forth in the Merger Agreement, each share of the Company’s common stock, par value $1.00 per share (the “Common Stock”), issued and outstanding immediately prior to the effective time of the Merger (other than certain excluded shares of the Common Stock) will, at the effective time of the Merger, be automatically canceled and converted into the right to receive $98.00 in cash, without interest and less any applicable withholding taxes (the “Merger Consideration”). It is expected that, following the effective date of the Merger, CVS Pharmacy will beneficially own more than

 


(1) The CUSIP numbers are included solely for the convenience of the Holders of Debentures. Neither the Company nor the Trustee shall be responsible for the selection or use of the CUSIP numbers, nor is any representation made as to its correctness with respect to the Debentures or as indicated in this Notice.

 



 

fifty percent (50%) of the Company’s Common Stock entitled to vote and, as a result, that the Merger will constitute a Change of Control, as defined in Section 1.01 of the Supplemental Indenture.

 

In accordance with the requirements of the Indenture, the Company hereby notifies Holders of the Debentures that, solely for purposes of the Indenture, the anticipated effective date of the Merger may be August 18, 2015, which is the date of the Company’s stockholder meeting. The Merger remains subject to various conditions, including, without limitation, the adoption of the Merger Agreement by the Company’s stockholders and the receipt of all required regulatory approvals, which have not yet been received. No assurances can be given as to whether stockholder approval or regulatory approval will be received, or whether, if received, such approvals will be received on or prior to such date. Accordingly, no assurance can be given as to the actual effective date of the Merger.

 

Upon occurrence of a Change of Control, each holder of Trust PIERS shall have the right to exchange all or any portion of such holder’s Trust PIERS for Debentures having a principal amount equal to the liquidation amount of such Trust PIERS. Pursuant to Section 7.06 of the Supplemental Indenture, after the consummation of the Merger, each Holder shall be entitled to convert the Debentures only into the amount of Merger Consideration which such Holder would have been entitled to receive upon the Merger had such Debentures been converted solely into Common Stock based upon the applicable Conversion Rate immediately prior to the effective time of the Merger.

 

In connection with the Merger, Holders may convert Debentures at any time from and after the date which is fifteen (15) days prior to the Anticipated Effective Date until fifteen (15) days after the effective date of the Merger.

 

This Notice is not an offer to repurchase Debentures by the Company and does not give any Holder the right to have its Debentures repurchased by the Company pursuant to Section 3.01 of the Supplemental Indenture. Such a repurchase right will only arise upon the consummation of a Change of Control, and the Company will send a further notice of a Holder’s repurchase right within thirty (30) days after the occurrence of a Change of Control in accordance with Article III of the Supplemental Indenture.

 

This Notice is being given solely pursuant to the requirements of Section 7.10 of the Supplemental Indenture and for no other purpose. Holders of the Debentures should refer to the Supplemental Indenture for a complete description of the conversion rights and procedures applicable to the conversion of the Debentures and direct any questions concerning this notice to the Trustee by calling U.S. Bank National Association at (800) 934-6802. Holders of the Trust PIERS should direct any questions concerning this notice to Kristine L. Prall at BNY Mellon – Corporate Trust by calling (770) 698-5184.

 




Exhibit 99.6

 

NOTICE OF ANTICIPATED CHANGE OF CONTROL

AND

ABILITY TO CONVERT DEBENTURES

TO

HOLDERS OF

SERIES B 4.00% JUNIOR SUBORDINATED CONVERTIBLE DEBENTURES DUE 2033

OF

OMNICARE, INC.

AND

HOLDERS OF TRUST PREFERRED EQUITY INCOME REDEEMABLE SECURITIES

OF

OMNICARE CAPITAL TRUST II

 

CUSIP Number 682100ZB2 (Debentures) and 68214Q200 (Trust PIERS)(1)

 

To the Holders of the Series B 4.00% Junior Subordinated Convertible Debentures due 2033 (the “Debentures”) of Omnicare, Inc. (the “Company”) and Holders of Trust Preferred Equity Income Redeemable Securities of Omnicare Capital Trust II (the “Trust PIERS”):

 

The Company and U.S. Bank National Association, a national banking organization organized under the laws of the United States, as successor trustee to SunTrust Bank, as trustee (the “Trustee”), are parties to that certain Third Supplemental Indenture, dated as of March 8, 2005 (the “Supplemental Indenture”), supplementing that certain Indenture, dated as of June 13, 2003 (together with the Supplemental Indenture, the “Indenture”), concerning the Debentures. This Notice is being given solely pursuant to the requirements of Section 7.10 of the Supplemental Indenture and for no other purpose. Capitalized terms used but not otherwise defined in this Notice have the meanings ascribed to such terms in the Indenture.

 

The Company has entered into an Agreement and Plan of Merger, dated as of May 20, 2015 (the “Merger Agreement”), by and among the Company, CVS Pharmacy, Inc. (“CVS Pharmacy”) and Tree Merger Sub, Inc., a wholly owned subsidiary of CVS Pharmacy (“Merger Sub”), providing for the merger of Merger Sub with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of CVS Pharmacy. The Merger Agreement provides that, on the terms and subject to the conditions set forth in the Merger Agreement, each share of the Company’s common stock, par value $1.00 per share (the “Common Stock”), issued and outstanding immediately prior to the effective time of the Merger (other than certain excluded shares of the Common Stock) will, at the effective time of the Merger, be automatically canceled and converted into the right to receive $98.00 in cash, without interest and less any applicable withholding taxes (the “Merger Consideration”). It is expected that, following the effective date of the Merger, CVS Pharmacy will beneficially own more than

 


(1) The CUSIP numbers are included solely for the convenience of the Holders of Debentures. Neither the Company nor the Trustee shall be responsible for the selection or use of the CUSIP numbers, nor is any representation made as to its correctness with respect to the Debentures or as indicated in this Notice.

 



 

fifty percent (50%) of the Company’s Common Stock entitled to vote and, as a result, that the Merger will constitute a Change of Control, as defined in Section 1.01 of the Supplemental Indenture.

 

In accordance with the requirements of the Indenture, the Company hereby notifies Holders of the Debentures that, solely for purposes of the Indenture, the anticipated effective date of the Merger may be August 18, 2015, which is the date of the Company’s stockholder meeting. The Merger remains subject to various conditions, including, without limitation, the adoption of the Merger Agreement by the Company’s stockholders and the receipt of all required regulatory approvals, which have not yet been received. No assurances can be given as to whether stockholder approval or regulatory approval will be received, or whether, if received, such approvals will be received on or prior to such date. Accordingly, no assurance can be given as to the actual effective date of the Merger.

 

Upon occurrence of a Change of Control, each holder of Trust PIERS shall have the right to exchange all or any portion of such holder’s Trust PIERS for Debentures having a principal amount equal to the liquidation amount of such Trust PIERS. Pursuant to Section 7.06 of the Supplemental Indenture, after the consummation of the Merger, each Holder shall be entitled to convert the Debentures only into the amount of Merger Consideration which such Holder would have been entitled to receive upon the Merger had such Debentures been converted solely into Common Stock based upon the applicable Conversion Rate immediately prior to the effective time of the Merger.

 

In connection with the Merger, Holders may convert Debentures at any time from and after the date which is fifteen (15) days prior to the Anticipated Effective Date until fifteen (15) days after the effective date of the Merger.

 

This Notice is not an offer to repurchase Debentures by the Company and does not give any Holder the right to have its Debentures repurchased by the Company pursuant to Section 3.01 of the Supplemental Indenture. Such a repurchase right will only arise upon the consummation of a Change of Control, and the Company will send a further notice of a Holder’s repurchase right within thirty (30) days after the occurrence of a Change of Control in accordance with Article III of the Supplemental Indenture.

 

This Notice is being given solely pursuant to the requirements of Section 7.10 of the Supplemental Indenture and for no other purpose. Holders of the Debentures should refer to the Supplemental Indenture for a complete description of the conversion rights and procedures applicable to the conversion of the Debentures and direct any questions concerning this notice to the Trustee by calling U.S. Bank National Association at (800) 934-6802. Holders of the Trust PIERS should direct any questions concerning this notice to Kristine L. Prall at BNY Mellon – Corporate Trust by calling (770) 698-5184.