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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
Information to be included in statements filed pursuant to Rule 13d-1(a)
and amendments thereto filed pursuant to Rule 13d-2(a)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3 )*
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NUMED HOME HEALTH CARE, INC.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
67052T201
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(CUSIP Number)
Marc C. Krantz, Kohrman Jackson & Krantz P.L.L., 1375 East 9th Street,
Cleveland, Ohio 44114
216-736-7204
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
November 20, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box / /.
NOTE: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See Rule 13d-7(b) for
other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Page 1 of 29 Pages
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SCHEDULE 13D
CUSIP NO. 67052T201 PAGE 2 OF 29 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TURKEY VULTURE FUND XIII, LTD.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [__]
(b) [__]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC, OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) [__]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
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NUMBER OF 7 SOLE VOTING POWER
SHARES 508,500
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY --------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 508,500
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PERSON 10 SHARED DISPOSITIVE POWER
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
508,500
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* [__]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.2%
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14 TYPE OF REPORTING PERSON*
OO
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CUSIP NO. 67052T201
This Amendment No. 3 to Schedule 13D Statement is filed on behalf of Turkey
Vulture Fund XIII, Ltd., an Ohio limited liability company (the "Fund"), for the
purpose of reporting certain litigation apparently filed by NuMED Home Health
Care, Inc., a Nevada corporation ("NuMed," "NuMED" or the "Company"), against
the Fund, and certain acquisitions by the Fund of shares of common stock, par
value $0.001 per share (the "Shares"), of NuMed.
Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 is amended and supplemented as follows:
The Shares acquired by the Fund since the filing of Amendment No. 2 to
Schedule 13D Statement on April 9, 1997 ("Amendment No. 2") were acquired for
the aggregate purchase price of approximately $31,000 with a combination of
working capital of the Fund and margin debt with EVEREN Securities, Inc.
("EVEREN"). The purchases of these Shares were previously reported by the Fund
in filings made with the Securities and Exchange Commission (the "SEC") on Form
3 on October 23, 1997 and Form 4 on February 5, 1998. As required by SEC rules,
both the Form 3 and Form 4 were mailed to NuMed.
Interest on the EVEREN margin debt is computed at a select rate above the
rate banks charge securities brokers ("brokers call money rate") and is subject
to change, without notice, if the brokers call money rate changes. To the
extent permitted by law, EVEREN has a lien on certain of the Shares reported
herein as having been acquired by the Fund. A copy of the agreement setting
forth the terms of the Fund's EVEREN margin debt is attached hereto as Exhibit
7.1.
Item 4. PURPOSE OF TRANSACTION.
Item 4 is amended and supplemented as follows:
On November 12, 1998, the Committee for a New NuMed (the "Committee") filed
a preliminary proxy statement with the SEC on Schedule 14A (the "Preliminary
Proxy Statement"). As stated in the Preliminary Proxy Statement:
"On April [8], 1997, [the Fund] requested, pursuant to Nevada law, to
inspect the Company's stockholders' list. When the Company failed to
respond, the Fund renewed its request to inspect the stockholders' list on
September 25, 1997, and in addition requested that the Board of Directors
of NuMED schedule an annual meeting of stockholders. The Company has not
held an annual meeting since March 29, 1996, and no election of directors
has taken place since then, contrary to the provisions of Nevada law and
the Company's own By-laws. Article III, Section 1 of the Company's By-laws
requires that NuMED hold an annual meeting of stockholders every July.
After the Board once again ignored the Fund's request, the Fund renewed its
demand for a stockholders' meeting on October 8, 1997.
With the hope of trying to convince NuMED's directors to hold a
stockholders' meeting, representatives of the Fund held discussions with
representatives of NuMED
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CUSIP NO. 67052T201
throughout the Summer and Fall of 1997. After the Fund's continued efforts
to press NuMED to hold a meeting failed, the Fund was left with no
alternative but to commence a lawsuit to force the Board of Directors to
hold an annual meeting of stockholders. On November 14, 1997, the Fund
initiated a lawsuit captioned TURKEY VULTURE FUND XIII, LTD. V. NUMED HOME
HEALTH CARE, INC. (2nd Jud. Dist. Ct., Washoe Cty., Nev. Case No.
CV-97-0777), alleging the facts described above and requesting that the
court (1) issue an order directing NuMED to produce its stockholders' list
for the Fund's inspection, (2) issue an order requiring NuMED to schedule
an annual stockholders' meeting, (3) enjoin NuMED from interfering with the
Fund's statutory rights as a stockholder, (4) award the Fund compensatory
damages for its injuries resulting from NuMED's failure to comply with
Nevada law relating to the inspection of stockholders' records, (5) order
NuMED to pay the Fund's costs, and (6) find any other further relief as the
court deems proper.
In December 1997, the Fund's counsel continued to have discussions
with NuMED's counsel in an attempt to settle the lawsuit. In January and
February 1998, representatives of the Company requested that the Fund
invest $2.0 million in NuMED. The Fund's investment was contingent upon
terminating . . . [the] employment agreement [of Jugal K. Taneja, Chairman
of the Board and Chief Executive Officer of NuMED]. Negotiations for a
capital infusion by the Fund broke down when NuMED requested an additional
$4.0 million loan and began discussing alternate plans with other parties.
In January 1998, the Company and the Fund negotiated a settlement of
the Fund's lawsuit. The terms of the settlement required the Company to
provide the Fund with a recent stockholders' list, and to hold an annual
meeting of stockholders by March 6, 1998. However, terms of the settlement
agreement were never finalized, and on February 18, 1998, NuMED announced
that it had entered into an agreement to merge with Banyan Healthcare
Services, Inc., a merchant banking firm organized to effect the combination
of home health care companies. In light of the Company's pending merger
with Banyan, the Fund determined that it would not pursue the litigation
and dismissed the action without prejudice in early March 1998. Banyan and
NuMED subsequently terminated their merger agreement.
After the failed Banyan merger, periodic conversations took place
between the Fund and the Company regarding holding an annual meeting and
whether a representative of the Fund would become a member of the Board of
Directors of NuMED."
On October 6, 1998, the Fund requested, through its legal counsel, that
NuMed hold an annual meeting of its stockholders. A copy of the letter, which
is also referenced in the Preliminary Proxy Statement, is attached hereto as
Exhibit 7.2 and is hereby incorporated by reference. The request for the annual
meeting repeated the requests made by the Fund to NuMed on September 25, 1997
and October 8, 1997 to hold a stockholders' meeting. Copies of the prior
requests are attached to the October 6, 1998 letter and included as part of
Exhibit 7.2.
On October 14, 1998, NuMed issued a press release announcing that Mednu
Acquisition Corp. had terminated its merger agreement with NuMed. In NuMed's
Form 10-Q for the quarter ended September 30, 1998, as filed with the SEC on
November 20, 1998, NuMed stated that the reason
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CUSIP NO. 67052T201
for the termination was "Mednu's failure to secure financing or commitments on
terms satisfactory to Mednu."
On October 19, 1998, the Fund requested the right to inspect NuMed's
stockholders' list in order to communicate with the stockholders of NuMed
concerning corporate affairs relating to the Fund's and such stockholders'
mutual interests as stockholders. NuMed has not provided the stockholders' list
to the Fund in response to this request. A copy of the letter is attached
hereto as Exhibit 7.3 and is hereby incorporated by reference. NuMed had
previously provided a copy of its stockholders' list to the Fund in response to
the requests made by the Fund for the stockholders' list in April and September
1997. The prior request by the Fund is described in Amendment No. 2 and the
Preliminary Proxy Statement.
On November 2, 1998, NuMed announced that an annual meeting of NuMed's
stockholders would be held on December 28, 1998 for the purpose of electing
directors. Once NuMed announced its intention to hold an annual meeting,
Richard M. Osborne, the sole Manager of the Fund, began to take steps to form
the Committee, which on November 12, 1998 filed the Preliminary Proxy Statement.
Upon its filing with the SEC, the Preliminary Proxy Statement was immediately
available to the public on EDGAR, the SEC's electronic filing system, and a copy
was provided on November 13, 1998 to NuMed through Thomas V. Chema, one of
NuMed's directors. Only ten days went by between the announcement by NuMed and
the filing by the Committee. (NuMed itself has failed to the date of this
filing to make its proxy statement publicly available.)
The Committee is seeking the support of NuMed's stockholders to elect its
five nominees to the Board of Directors of NuMed. As described in the
Preliminary Proxy Statement, if the Committee is successful in the election, it
would cause a change in the Board of Directors of NuMed resulting in the
nominees of the Committee constituting the entire Board of Directors, unless the
two existing vacancies on NuMed's Board are filled. In addition, in the
Preliminary Proxy Statement, the Committee proposed an amendment to NuMed's
By-laws to eliminate the classified Board of Directors and permit NuMed
stockholders to elect all directors annually.
Under Item 5 to NuMed's Form 10-Q for the quarter ended September 30, 1998,
which was filed with the SEC on November 20, 1998, NuMed states, in part, that
"[o]n November 24, [sic] 1998 [NuMed] filed a lawsuit due to the violation of
the Section 13(D) [sic] filing." The NuMed Form 10-Q fails to elaborate what if
any violation of Section 13(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), there may have been and further fails to state
against whom the lawsuit has been filed. Counsel to the Fund received a copy of
the complaint on November 23, 1998, although the Fund has not been served with a
copy of the complaint. A copy of the complaint in NUMED HOME HEALTH CARE, INC.
V. TURKEY VULTURE FUND XIII, LTD. (U.S. Dist. Ct., Florida, Tampa Division, No.
98-2354-CIV-T-17F) is attached hereto as Exhibit 7.4.
The complaint alleges that (1) the Fund failed to file an amendment to its
Schedule 13D indicating that it "is attempting to gain control of NuMed through
a proxy fight, oust current management, and eliminate NuMed's staggered Board of
Directors" and (2) the Fund failed to file an amendment to its Schedule 13D
regarding the purchase of the additional 23,500 shares reported herein as having
been acquired by the Fund. The complaint seeks (a) a temporary and permanent
injunction requiring the Fund to file an amendment to its Schedule 13D "which
will accurately
Page 5 of 29 Pages
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CUSIP NO. 67052T201
reflect its true purpose," (b) a temporary injunction enjoining the Fund from
exercising voting rights and soliciting proxies during the pendency of the
lawsuit and "an appropriate 'cooling-off period,'" (c) costs and attorneys'
fees, and (d) such other relief as the Court deems just and appropriate. The
Fund can only assume that the lawsuit has been filed against it as an attempt by
management to delay the outcome of the annual meeting, thereby further
entrenching itself. In addition, the Fund can only assume that because NuMed
has failed to make its proxy statement public it has a further incentive to
delay the meeting.
The Fund denies that there has been any violation of Section 13(d) of
the Exchange Act or the rules and regulations promulgated by the SEC
thereunder. All the required disclosure regarding the change in the Board of
Directors and the By-laws was made on a prompt and timely basis in the
Preliminary Proxy Statement. The purchase of the additional 23,500 Shares
was fully-disclosed both publicly and to the Company on the required SEC
forms. Under Rule 13d-2, an acquisition of securities in an amount equal to
1% or more of a class of securities is deemed "material" for purposes of the
Schedule 13D rules and requires an amendment to a Schedule 13D. No separate
Schedule 13D filing obligation arose because the purchases by the Fund of
23,500 Shares amount to less than 1% of the outstanding Shares. No other
facts or circumstances arose at the time of the purchases or until now with
the apparent filing of the lawsuit that necessitated filing an additional
amendment to the Fund's Schedule 13D Statement. If, and when, the Fund is
served with a copy of the lawsuit, the Fund will vigorously defend itself,
including taking all necessary steps to insure that the stockholders of NuMed
have the opportunity to elect a Board of Directors.
Mr. Osborne and the Fund continue to reserve the right to modify their, and
the Committee's, plans and proposals described in Item 4, as amended and
supplemented. Further, subject to applicable laws and regulations, they may
formulate plans and proposals that may result in the occurrence of any event set
forth in clauses (i) through (ix) of Item 4 as set forth in the original
Schedule 13D Statement filed by the Fund on December 23, 1996.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is amended and supplemented as follows:
(a) According to the most recently available filing with the Securities
and Exchange Commission by NuMed, there are 4,966,620 Shares outstanding.
The Fund beneficially owns 508,500 Shares, or approximately 10.2% of the
outstanding Shares. Because Mr. Osborne is sole manager of the Fund, Mr.
Osborne may be deemed to beneficially own such Shares.
(b) Mr. Osborne, as sole manager of the Fund, has sole power to vote, or
to direct the voting of, and the sole power to dispose or to direct the
disposition of, the 508,500 Shares owned by the Fund.
(c) During the past 60 days, the Fund has not purchased any Shares.
Page 6 of 29 Pages
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CUSIP NO. 67052T201
(d) Not Applicable.
(e) Not Applicable.
Item 7. MATERIALS TO BE FILED AS EXHIBITS.
Exhibit 7.1 General Account Agreement Letter to Kemper Securities, Inc.
(predecessor-in-interest to EVEREN) from Turkey Vulture Fund
XIII, Ltd.
Exhibit 7.2 October 6, 1998 request by the Turkey Vulture Fund XIII, Ltd.
(through its counsel) to NuMED Home Health Care, Inc. to hold an
annual meeting of stockholders, together with prior requests
dated September 25, 1997, as Attachment A, and October 8, 1997,
as Attachment B
Exhibit 7.3 October 19, 1998 request by the Turkey Vulture Fund XIII, Ltd. to
NuMED Home Health Care, Inc. for the right to inspect NuMed's
stockholders' list
Exhibit 7.4 Complaint filed by NuMED Home Health Care, Inc. against Turkey
Vulture Fund XIII, Ltd. in the United States District Court,
Middle District of Florida, Tampa Division, Case No.
98-2354-CIV-T-17F ([sic] marks added to show typographical
errors). Copies of the exhibits to the Complaint are not
included but will be furnished to the Commission upon request.
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CUSIP NO. 67052T201
After reasonable 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.
Dated: November 24, 1998 TURKEY VULTURE FUND XIII, LTD.
By: /s/ Richard M. Osborne
-------------------------------
Richard M. Osborne, Manager
Page 8 of 29 Pages
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CUSIP NO. 67052T201
EXHIBIT LIST
Exhibit 7.1 General Account Agreement Letter to Kemper Securities, Inc.
(predecessor-in-interest to EVEREN) from Turkey Vulture Fund
XIII, Ltd.
Exhibit 7.2 October 6, 1998 request by Turkey Vulture Fund XIII, Ltd.
(through its counsel) to NuMED Home Health Care, Inc. to hold an
annual meeting of stockholders, together with prior requests
dated September 25, 1997, as Attachment A, and October 8, 1997,
as Attachment B
Exhibit 7.3 October 19, 1998 request by Turkey Vulture Fund XIII, Ltd. to
NuMED Home Health Care, Inc. for the right to inspect NuMed's
stockholders' list
Exhibit 7.4 Complaint filed by NuMED Home Health Care, Inc. against Turkey
Vulture Fund XIII, Ltd. in the United States District Court,
Middle District of Florida, Tampa Division, Case No.
98-2354-CIV-T-17F ([sic] marks added to show typographical
errors). Copies of the exhibits to the Complaint are not
included but will be furnished to the Commission upon request.
Page 9 of 29 Pages
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EXHIBIT 7.1
GENERAL ACCOUNT AGREEMENT
To: Kemper Securities, Inc.
in account with Kemper Clearing Corp.
Gentlemen:
In consideration of your accepting one or more accounts of the undersigned, it
is agreed as follows:
1. All transactions under this Agreement shall be subject to the
constitution, rules, regulations, customs, usages, rulings and interpretations
of the exchange or market and its clearing house, if any, where executed, and to
all governmental acts and statutes and to rules and regulations made thereunder
insofar as applicable. Whenever any act or statute shall be enacted, or any
regulation shall be made under any act or statute or any rule or regulation
shall be made by any exchange or market of which you are a member, which shall
be applicable to and affect in any manner or be inconsistent with any of the
provisions hereof, the provisions of this Agreement so affected shall be deemed
modified or superseded, as the case may be, by such act, statute, rule or
regulation and all other provisions of this Agreement and the provisions as so
modified shall in all respects continue and be in full force and effect.
2. All orders for the purchase or sale of any property are given by the
undersigned and executed with the express understanding that an actual purchase
or sale is intended and that it is the undersigned's intention and obligation in
every case to deliver certificates or commodities to cover any and all of the
undersigned's sales and in the case of purchases to receive and pay for
certificates or commodities and that the undersigned will do so in compliance
with all applicable regulations.
3. Except as herein otherwise expressly provided, no provision of this
Agreement may be waived, altered, modified, or amended unless such waiver,
alteration, modification or amendment is in writing and signed by a duly
authorized officer of your corporation.
4. All monies, securities, commodities or other property which you may at
any time be carrying for the undersigned or which may at any time be in your
possession for any purpose, including safekeeping, shall be held by you as
security for the payment of any liability of the undersigned to you,
irrespective of whether or not you have made advances in connection with such
securities, commodities or other property, and irrespective of the number of
accounts the undersigned may have with you.
5. All securities and commodities or any other property, now or hereafter
held by you, or carried by you for the undersigned (either individually or
jointly with others) or deposited to secure the same, may be held in your name
or that of any nominee, and may from time to time and without notice to the
undersigned, be carried in your general loans and may be pledged, re-pledged,
hypothecated, or re-hypothecated, or loaned by you to either yourselves as
brokers or to others, separately or in common with other securities and
commodities or any other property, for the sum due to you from the undersigned
or for a greater sum and without retaining in your possession and control for
delivery a like amount of similar securities, commodities, or other property.
6. You are authorized to make such advances and to expend such monies as
in your opinion may be required in respect of all transactions hereunder. The
undersigned agrees to pay customary brokerage and commission charges. Debit
balances of the accounts of the undersigned shall be charged with interest in
accordance with your usual custom, and with any increases in rates caused by
money market conditions, and with such other charges as you may make to cover
your facilities and extra services. Credit balances shall not earn interest. It
is understood and agreed that the interest charge made to the undersigned's
account at the close of one charge period will be compounded, that is, added to
the opening balance for the next charge period unless paid, thereby becoming
part of the principal amount and bearing like interest. A statement disclosing
your credit terms currently applicable to margin transactions is set forth as
part of this Agreement, but is subject to change from time to time as set forth
therein.
Page 10 of 29 Pages
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7. All securities, other property and collateral deposited for the
protection of the undersigned's collateral and/or margin account may be
deposited with the Depository Trust Company or any other recognized clearing
corporation or depository trust company, and may be held in street name and used
there by you until the undersigned shall demand and become entitled to delivery
thereof; you shall have a reasonable time after such a demand for delivery to
ship securities, other property or collateral from New York or from any other
place where they may be to the place where the same are to be delivered to the
undersigned, and shall only be required to deliver securities, other property or
collateral of the same kind and character as originally deposited.
8. You shall not be responsible for delays in the transmission of orders
due to breakdown or failure of transmission or communication facilities, and you
shall not be liable for loss caused directly or indirectly by governmental
restrictions, war, strikes, or any other cause or causes beyond your reasonable
control or anticipation.
9. All orders given by the undersigned for the purchase or sale of
securities or other property, which may be listed on more than one exchange or
market, may be executed on any exchange or market selected by you.
10. Whenever in your discretion you consider it necessary for your
protection, or in the event that one or more of the undersigned be judicially
declared incompetent, or dies, or a petition in bankruptcy or for the
appointment of a receiver is filed by or against one or more of the undersigned,
or an assignment is made by one or more of the undersigned for the benefit of
creditors, or an attachment is levied against one or more of the undersigned's
accounts, or the collateral deposited to protect the undersigned's account is
determined by you in your absolute and uncontrolled discretion, and regardless
of current market quotations, to be inadequate to properly secure the account,
then, in any such case, any one of which shall be a default hereunder, you are
authorized to close out the account in whole or in part and in connection
therewith you may sell any or all the securities and commodities or other
property which may be in your possession, or which you may be carrying for the
undersigned, or you may buy in any securities, commodities or property of which
the account or accounts of the undersigned may be short, or cancel any
outstanding orders in order to close out the account or accounts of the
undersigned in whole or in part in order to close out any commitment made on
behalf of the undersigned. Such sale, purchase or cancellation may be made
according to your judgement and may be made, at your discretion, on the exchange
or other market where such business is then usually transacted, or at public
auction or at private sale, without advertising the same and without notice to
the undersigned or to the personal representatives of the undersigned, and
without prior tender, demand or call of any kind upon the undersigned or upon
the personal representative of the undersigned, and you may purchase the whole
or any part thereof free from any right of redemption, and the undersigned
shall remain liable for any deficiency; it being understood that a prior tender,
demand or call of any kind from you, or prior notice from you, of the time and
place of such sale or purchase shall not be considered a waiver of your right to
sell or buy any securities and/or commodities and/or other property held by you,
or owed you by the undersigned, at any time without prior tender, demand, call
or notice. All costs and expenses of such transaction(s), including commissions
and transfer and stamp taxes, shall be charged to the undersigned.
11. The undersigned understands that you require the maintenance of
certain margin levels in said accounts and that you may, in your discretion,
periodically increase or decrease such requirements. The undersigned will at
all times maintain margins for said accounts in accordance with the then
existing maintenance requirements.
12. You may at any time terminate any accounts of the undersigned with you
and thereupon all amounts advanced by you and other balances owing, with
interest at the current rate, and any and all commissions due under your current
rate schedule, shall be immediately due and payable upon demand. The
undersigned undertakes, at any time upon your demand, to discharge obligations
of the undersigned to you, including obligations with respect to any account
guaranteed by the undersigned, or, in the event of a closing of any account of
the undersigned in whole or in part by you or the undersigned, and/or a similar
closing of any account guaranteed by the undersigned, to pay the deficiency, if
any, and the undersigned agrees to reimburse you for any costs or expenses
Page 11 of 29 Pages
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incurred by you in collecting such amounts, including reasonable attorney's
fees. No oral agreement or instructions to the contrary shall be recognized.
13. All transactions for or in connection with the account of the
undersigned shall be deemed to be included in a single account notwithstanding
the fact that such transactions may be segregated on your records into separate
accounts, either severally or jointly with others; and at any time and from time
to time, in your discretion, you may without notice to the undersigned, apply
and/or transfer any or all monies, securities, commodities and/or other property
of the undersigned interchangeably between any accounts of the undersigned or
from any of the undersigned's accounts to any account guaranteed by the
undersigned (other than from Regulated Commodity Accounts.)
14. When placing with you any sell order for short account, the
undersigned will designate it as such and hereby authorizes you to mark such
order as being "short", and when placing with you any order for long account,
will designate it as such and hereby authorizes you to mark such order as being
"long". Any sell order which the undersigned shall designate as being for long
account as above provided, is for securities then owned by the undersigned and,
if such securities are not then deliverable by you from any account of the
undersigned, the placing of such an order shall constitute a representation by
the undersigned that he will deliver them forthwith. Further, in case of the
sale of any security, commodity or other property by you at the direction of the
undersigned and your inability to deliver the same to the purchaser by reason of
failure of the undersigned to supply you therewith in deliverable form subject
to no restrictions on transfer, then and in such event the undersigned
authorizes you, in your discretion to borrow or buy in any security, commodity,
or other property necessary to make delivery thereof, and the undersigned hereby
agrees to be responsible for any loss which you may sustain thereby and any
premiums which you may be required to pay thereon, and for any loss which you
may sustain by reason of your inability to borrow or as a result of your buy in
of such security, commodity or other property sold.
15. In all transactions between you and the undersigned, the undersigned
understands that you are acting as the brokers of the undersigned, except when
you disclose to the undersigned by your formal confirmation or otherwise in
writing that you are acting, with respect to a particular transaction, as
dealers for your own account or as broker for some other person. You may employ
sub-brokers or other agents, as your agents or as agents of the undersigned, in
connection with the execution of any order or the consummation of any other
transaction hereunder, and you shall be responsible only for reasonable care in
their selection.
16. Reports of the execution of orders and statements of the accounts of
the undersigned shall be conclusive if not objected to in writing at once.
17. Communications may be sent to the undersigned at the address of the
undersigned indicated on the last page of this Agreement or at such other
address as the undersigned may hereafter give you in writing, and all
communications so sent, whether by mail, telegraph, messenger or otherwise,
shall be deemed given to the undersigned personally, whether actually received
or not.
18. The provisions of this Agreement shall in all respects be construed
according to, and the rights and liabilities of the parties hereto shall in all
respects be governed by, the laws of the State of Illinois.
19. The provisions of this Agreement shall be continuous and shall cover
individually and collectively all accounts which the undersigned may open or
reopen with you, and shall enure to the benefit of yourselves, your successors
and assigns and shall be binding upon the undersigned, and/or the estate,
executors, administrators and assigns of the undersigned.
20. Any order given to you by the undersigned shall be binding upon the
undersigned and his personal representative until you have actual notice of his
death and notice thereof shall not in any way affect your rights under this
Agreement to take any action which you could have taken if the undersigned had
not died.
21. You shall not be liable for refusing to obey any orders given by or
for the undersigned with respect to an account(s) which has or have been the
subject of attachment or sequestration in any legal proceeding against the
undersigned, and you shall be under no obligation to contest the validity of any
such attachment or sequestration.
Page 12 of 29 Pages
<PAGE>
22. The undersigned agrees to indemnify and to hold you harmless from any
loss, damage or liability arising out of any transaction in which you act,
directly or indirectly, as agent of the undersigned, absent any willful or
grossly negligent conduct.
23. Should any valid federal or state law or final determination of any
administrative agency or court of competent jurisdiction affect any provision of
this Agreement, the provision or provisions so affected shall be automatically
conformed to the law or determination and otherwise this Agreement shall
continue in full force and effect.
24. The undersigned understands in connection with this Agreement an
investigation may be made whereby information is obtained through personal
interviews with his neighbors, friends or others with whom he is acquainted.
This inquiry includes information as to his character, general reputation,
personal characteristics and mode of living. The undersigned has the right to
make a written request within a reasonable period of time for a complete and
accurate disclosure of additional information concerning the nature and scope of
this investigation.
25. Arbitration Disclosures
Arbitration is final and binding on all parties.
The parties are waiving their right to seek remedies in court, including the
right to jury trial.
Pre-arbitration discovery is generally more limited than and different from
court proceedings.
The arbitrator's award is not required to include factual findings or legal
reasoning and any party's right to appeal or seek modification of rulings by the
arbitrators is strictly limited.
The panel of arbitrators will typically include a minority of arbitrators who
were or are affiliated with the securities industry.
It is agreed that any claim, dispute or controversy between us or involving any
affiliate of Kemper Securities, Inc. shall be submitted to arbitration conducted
under (i) the provisions of the Constitution and Rules of the Board of Governors
of the New York Stock Exchange, Incorporated as to any matter, or (ii) with
respect to transactions effected on any other stock exchanges, under the
arbitration rules of such stock exchange, or (iii) pursuant to the code of
Arbitration procedures of the National Association of Securities Dealers,
Incorporated, as the undersigned may elect. The award of the arbitrators will
be final and judgement upon the award rendered may be entered in any court,
state or federal, having jurisdiction. Copies of such arbitration rules may be
obtained from Kemper Securities, Inc., or any such organization.
Arbitration must be commenced by service upon the other party of a written
demand for arbitration or a written notice of intention to arbitrate, therein
electing the arbitration tribunal. In the event the undersigned does not make
such election within five (5) days of such demand notice, then the undersigned
authorizes you to do so on behalf of the undersigned.
Credit Terms in Margin Transactions
A finance charge is made by Kemper Clearing Corp. ("KCC") for extensions of
credit to its customers for the purposes of enabling them to purchase, carry or
trade in any security. These finance charges are described in KCC's monthly
statements as "interest". The following is a statement concerning the method of
computation of total finance charges on credit extended to customers.
A. The annual rate of the interest charged on net debit balances is computed
at a select rate above the brokers call money rate. The brokers call money
rate is the rate banks charge securities brokers. A higher charge may be
levied against an account depending on various factors such as the
Page 13 of 29 Pages
<PAGE>
evaluation of the commission income generated by the account, the service
required for the account, etc.
B. Interest charges will be calculated monthly on the adjusted debit balance
in an account using a 360 day year basis. Interest charged is calculated
on a settlement date basis.
C. Interest rates will be changed without notice to the customer in accordance
with changes in the brokers call money rate. Interest is charged monthly,
just prior to the statement date.
D. The daily net balance is determined by combining the daily closing
statement balances in all general (margin) accounts with any free credit
balance in cash accounts.
E. Any mark-to-the-market as a result of a short position, i.e. any credit
that appears in a statement due to short sales (including short sales
against the box) will be used to reduce any debit balance. Since KCC must
borrow the same security in order to deliver it to the buying broker, this
credit is not available to the customer. Therefore, on a daily basis, the
market value of a short sale is debited against the margin balance in order
to arrive at the adjusted debit balance for interest purposes. The daily
closing price is used to determine any appreciation or depreciation of a
security sold short which will, in turn, adjust the daily net balance.
This practice is known as "marking-to-the-market".
F. The amount of interest charges is based on the following formula:
Adjusted Debit Balance Rate Number of Days
1 X 100 X 360
G. An interest charge (as described in A.) will be charged on all prepayments
resulting from proceeds of sales which are paid to the customer prior to
settlement date of the trade for which negotiable securities have been
received.
H. To the extent permitted by applicable law, all securities in all accounts
are collateral for any debit balances in account with KCC. A lien is
created by these debits to secure the amount of money owed KCC. In
accordance with the terms of the General Account Agreement which is signed
below, securities in accounts can be sold to reduce or liquidate entirely
any debit balances in accounts. The customer may be required to deposit
additional collateral in accordance with the rules and regulations of the
appropriate regulatory bodies and internal requirements. KCC reserves the
right to require additional collateral at any time it is deemed desirable.
I. The net debit balance in an account may be paid in full at any time,
thereby avoiding further interest charges.
J. The undersigned has read the foregoing in its entirety before signing.
Questions about interest charges should be directed to the Investment
Broker.
BY SIGNING THIS AGREEMENT, I ACKNOWLEDGE THAT MY SECURITIES MAY BE LOANED TO YOU
OR LOANED OUT TO OTHERS TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND
REGULATIONS.
Page 14 of 29 Pages
<PAGE>
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE SET FORTH IN PARAGRAPH
25 ABOVE. BY MY SIGNATURE BELOW, I ACKNOWLEDGE THAT I HAVE READ AND AGREE TO BE
BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT I HAVE RECEIVED
A COPY OF THIS AGREEMENT.
/s/ Richard M. Osborne
- --------------------------- ----------------------
Dated Signature
/s/ E. Tammy Daye /s/ Richard M. Osborne
- ---------------------------- ----------------------
Witness Signature
Turkey Vulture Fund XIII Ltd. WYO7-7905-7985
- ----------------------------- -----------------------------
Account Name Branch I. D. & Account Number
___________________________________________________________________
Home Address
/s/ David Van Duesen
- ------------------------------
Investment Broker's Signature
Page 15 of 29 Pages
<PAGE>
EXHIBIT 7.2
KOHRMAN JACKSON & KRANTZ P.L.L.
ATTORNEYS AT LAW
20th FLOOR, ONE CLEVELAND CENTER
1375 EAST NINTH STREET
CLEVELAND, OHIO 44114
-----
216-696-8700
DIRECT DIAL TELECOPIER E-MAIL
216-736-7204 216-621-6536 [email protected]
October 6, 1998
VIA TELECOPIER AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Board of Directors
NuMED HOME HEALTH CARE, INC.
5770 Roosevelt Boulevard, Suite 700
Clearwater, Florida 34620
RE: FINAL DEMAND FOR ANNUAL MEETING
Dear Sirs:
As the Board of Directors is aware, our Client, Turkey Vulture Fund XIII,
Ltd., an Ohio limited liability company (the "Fund"), has made repeated demands
that an annual shareholder meeting of NuMed Home Health Care, Inc. (the
"Company") be held (See attached letters dated September 25, 1997 and October 8,
1997). As a result of the Board of Directors' failure to schedule an annual
shareholder meeting, on November 17, 1997, the Fund filed complaint number
CV97-07777 in the Second Judicial Court of the State of Nevada, requesting,
among other things, an order requiring the Company to schedule an annual
shareholder meeting. After receiving repeated assurances from the Board of
Directors that the Company would hold an annual shareholder meeting in
conjunction with its merger with Banyan Healthcare Services, Inc., the Fund
voluntarily dismissed the lawsuit.
Seven months have now passed since the Fund dismissed its lawsuit and the
Company still has not scheduled an annual shareholder meeting. The Company is
currently in the process of negotiating another merger agreement with no annual
shareholder meeting in sight. The Fund cannot and will not tolerate such
dereliction of duty on the part of the Board of Directors on this matter. On
behalf of the Fund, this is our final demand that an annual shareholder meeting
be scheduled to enable the shareholders of the Company to elect directors and to
conduct other business of the Company pursuant to Section 78.330 of the Nevada
General Corporation Law (the "NGCL").
As we have repeatedly reminded the Company, Article III, Section 1 of the
Company's By-Laws require that "[t]he annual meeting of the stockholders shall
be held in July of each year, at a
Page 16 of 29 Pages
<PAGE>
KOHRMAN JACKSON & KRANTZ P.L.L.
NuMed Home Health Care, Inc.
October 6, 1998
Page 2
date and time to be specified by the Board of Directors." The last annual
meeting of the Company was held on March 29, 1996. No annual shareholder
meeting was held in July 1997, nor has an annual shareholder meeting been
scheduled by the Board of Directors for 1998. Failure to hold an annual meeting
not only violates the Company's By-Laws, but under provisions of the NGCL
subjects the Company to monetary penalties for failure to hold an annual
meeting. As such violations may subject each director of the Company to
liability for breach of their fiduciary duties.
Be advised that, if the Company fails to notify the Fund of the date of the
annual shareholder meeting within five (5) business days of receipt of this
letter, the Fund is prepared to institute legal proceedings and pursue such
legal remedies as are available against the Company and each director for
failing to hold an annual shareholder meeting. We await the Company's response.
Sincerely,
/s/ Marc C. Krantz
Marc C. Krantz
cc: Richard M. Osborne
Page 17 of 29 Pages
<PAGE>
ATTACHMENT A
KOHRMAN JACKSON & KRANTZ P.L.L.
ATTORNEYS AT LAW
20th FLOOR, ONE CLEVELAND CENTER
CLEVELAND, OHIO 44114
------
216-696-8700
Direct Dial: TELECOPIER
216-736-7204 216-621-6536
E-mail: [email protected]
September 25, 1997
VIA TELECOPIER AND CERTIFIED MAIL
RETURN RECEIPT REQUESTED
NO. P 109 121 334
Board of Directors
NuMED HOME HEALTH CARE, INC.
5770 Roosevelt Boulevard, Suite 700
Clearwater, Florida 34620
RE: DEMAND FOR ANNUAL MEETING
Dear Sirs:
Our client, Turkey Vulture Fund XIII, Ltd., an Ohio limited liability
company (the "Fund"), is the beneficial owner of approximately 9.9% of the
Common Stock of NuMED Home Health Care, Inc. (the "Company"), as disclosed in
Amendment No. 2 to the Schedule 13D filed by the Fund with the SEC. On behalf
of the Fund, we hereby request that an annual meeting be scheduled immediately
by the Board of Directors to enable the shareholders of the Company to elect
directors and to conduct other business of the Company pursuant to Section
78.330 of the Nevada General Corporation Law (the "NGCL").
The Company's By-Laws, in Article III, Section 1, require that "[t]he
annual meeting of the stockholders shall be held in July of each year, at a date
and time to be specified by the Board of Directors." No annual meeting was held
in July 1997, nor has one been scheduled by the Board of Directors and the last
annual meeting of the Company was held on March 29, 1996. Failure to hold the
meeting violates the Company's By-Laws and the NGCL.
The United States District Court for the District of Nevada recently
addressed this issue and found that Section 78.330 of the NGCL required that if
a corporation's by-laws provided for an annual meeting every twelve months it
had to be held. SEE HILTON HOTELS CORP. V. ITT CORP., 962 F. Supp. 1309, 1310
(D. Nev. 1997). Because the Company's By-Laws require that an annual
Page 18 of 29 Pages
<PAGE>
KOHRMAN JACKSON & KRANTZ P.L.L.
Board of Directors
NuMED HOME HEALTH CARE, INC.
Page 2
September 25, 1998
meeting be held in July of each year, the annual meeting is already
significantly late. Moreover, under Section 78.345 of the NGCL, if the Board
fails to hold a meeting within 18 months of the last meeting a Nevada court
may order the meeting held. Therefore, the Board of Directors of the Company
must immediately schedule the 1997 annual meeting of the Company.
Please notify me within five business days of the date of this letter of
the date that the annual meeting will be held. I look forward to your response.
Sincerely,
/s/ Marc C. Krantz
Marc C. Krantz
klm/
cc: Mr. Richard M. Osborne
Page 19 of 29 Pages
<PAGE>
ATTACHMENT B
KOHRMAN JACKSON & KRANTZ P.L.L.
ATTORNEYS AT LAW
20th FLOOR, ONE CLEVELAND CENTER
CLEVELAND, OHIO 44114
------
216-696-8700
DIRECT DIAL TELECOPIER E-MAIL
216-736-7204 216-621-6536 [email protected]
October 8, 1997
VIA TELECOPIER AND
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
NO. P 109 121 335
Board of Directors
NuMED HOME HEALTH CARE, INC.
5770 Roosevelt Boulevard, Suite 700
Clearwater, Florida 34620
Re: Demand for Shareholder List and Annual Meeting
Dear Sirs:
On behalf of our client, Turkey Vulture Fund XIII, Ltd., an Ohio limited
liability company (the "Fund"), we made a second demand for inspection of the
shareholder list of NuMED Home Health Care, Inc. (the "Company") on September
25, 1997. Pursuant to Section 78.015 3 of the Nevada General Corporation Law
(the "NGCL"), the Fund is entitled to inspect and copy the records of the
Company (as enumerated in Section 78.015 1 of the NGCL) upon at least 5 days'
written demand. The first demand was made on April 8, 1997, and, as stated, the
second demand was made on September 25. The 5 day time limit has expired with
respect to both of these demands without a response from the Company.
Additionally, on behalf of the Fund, we requested, by separate letter dated
September 25, 1997, that an annual meeting be scheduled immediately by the Board
of Directors of the Company as required by Article III, Section 1 of the
Company's By-Laws and Section 78.330 of the NGCL. We have yet to receive a
response from the Company. We renew the Fund's demand that an annual meeting be
immediately scheduled.
Page 20 of 29 Pages
<PAGE>
KOHRMAN JACKSON & KRANTZ P.L.L.
NuMED HOME HEALTH CARE, INC.
October 8, 1997
Page 2
The requested material should be sent directly to the address set forth
above immediately, and please notify me immediately of the date of the Company's
annual meeting. If the meeting is not immediately scheduled and the materials
forthcoming, the Fund will be forced to take action in Court, where the Company
will be liable for penalties and costs.
I look forward to your immediate response.
Sincerely,
/s/ Marc C. Krantz
Marc C. Krantz
/klm
Page 21 of 29 Pages
<PAGE>
EXHIBIT 7.3
RICHARD M. OSBORNE
- --------------------------------------------------------------------------------
7001 CENTER STREET
MENTOR, OHIO 44061
Telephone (216) 951-1111
Fax (216) 255-8645
October 19, 1998
BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED
Board of Directors
NuMED HOME HEALTH CARE, INC.
5770 Roosevelt Blvd., Suite 700
Clearwater, FL 34620
Re: REQUEST FOR SHAREHOLDER LIST OF NUMED HOME HEALTH CARE, INC. (THE
"COMPANY"), PURSUANT TO SECTION 78.105 OF THE NEVADA GENERAL
CORPORATION LAW ("NGCL")
Dear Sirs:
Turkey Vulture Fund XIII, Ltd. (the "Fund") is the beneficial owner of
508,500 shares of the Company. The Fund has filed with the Securities and
Exchange Commission a Schedule 13D, and amendments thereto, and Forms 3 and 4
disclosing such ownership, and has not disposed of any such shares.
Pursuant to Section 78.105 (3) of the NGCL, the Fund, as owner of
approximately 10.2% of the Company's common stock, is entitled to inspect the
Company's stock ledger. Accordingly, please provide the following information
to Kohrman Jackson & Krantz P.L.L., One Cleveland Center, 20th Floor, Cleveland,
Ohio 44114, Attn. Marc C. Krantz, Esq.:
(a) A list of the record holders of shares of the Company, certified
by the Company's transfer agent, showing the names and addresses of
each shareholder who is entitled to vote for the election of Directors
of the Company as of the most recent practicable date;
(b) A computer disk with the list of the holders of the Company's
shares as of the most recent practicable date, showing the name,
address and number of shares held by each shareholder, including such
computer processing data as is necessary to make use of such computer
disk and a printout of such list for verification purposes; and
(c) All information in the Company's possession or control or which
can reasonably be obtained from nominees of any central certificate
depository system
Page 22 of 29 Pages
<PAGE>
concerning the number and identity of the actual beneficial owners of the
Company's shares, including a breakdown of any holdings in the name of CEDE
& Co., Kray & Co., Pacific & Co., NCC & Co., Philadep, DLH, NEST and other
similar nominees, and any list of non-objecting beneficial owners (NOBO's)
in the Company's possession.
The Fund will bear the reasonable costs incurred by the Company (including
those of its transfer agent) in connection with the production of the above
information. The purpose of the requested examination is to ascertain the names
and addresses of other shareholders in order to communicate with them concerning
corporate affairs relating to our mutual interests as shareholders.
The Fund represents and affirms that the requested examination is not
desired for a purpose which is in the interest of a business or object other
than the business of the Company and that the Fund has not at any time sold or
offered for sale any list of stockholders of any domestic or foreign corporation
or aided or abetted any person in procuring any such record of stockholders for
any such purpose. As required by Section 78.107, an affidavit to the foregoing
effect is attached.
The Fund hereby designates and authorizes Kohrman Jackson & Krantz P.L.L.,
its employees and any other representative or agent designated by them or by the
undersigned, acting alone or in any combination, to conduct an inspection of the
stock ledger of the Company and to make copies therefrom. A copy of the Power
of Attorney authorizing such appointment is attached.
Please sign a copy of this letter to indicate your willingness to provide
the Fund with the above requested information, and return it in the prepaid,
self-addressed return envelope.
Sincerely,
TURKEY VULTURE FUND XIII, LTD.
/s/ Richard M. Osborne
------------------------------------
Richard M. Osborne, Manager
Page 23 of 29 Pages
<PAGE>
STATE OF OHIO )
) SS AFFIDAVIT OF RICHARD M. OSBORNE
COUNTY OF LAKE )
I, Richard M. Osborne, manager of the Turkey Vulture Fund XIII, Ltd. (the
"Fund"), being first duly sworn according to law, depose and state upon oath as
follows:
Requested examination by the Fund of the stock ledger of NuMED Home Health
Care, Inc. is not desired for a purpose which is in the interest of a business
or object other than the business of NuMED Home Health Care, Inc., and the Fund
has not at any time sold or offered for sale any list of stockholders or any
domestic or foreign corporation or aided or abetted any person in procuring any
such record of stockholders for any such purpose.
/s/ Richard M. Osborne
-----------------------------------
Richard M. Osborne
SUBSCRIBED AND SWORN TO before me on October 19, 1998.
/s/ Debbie Lane
-----------------------------------
NOTARY PUBLIC
Page 24 of 29 Pages
<PAGE>
EXHIBIT 7.4
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NUMED HOME HEALTH CARE, INC., Case No. 98-2354-CIV-T-17F
a Nevada corporation,
Plaintiff,
Vs.
TURKEY VULTURE FUND XIII, LTD.,
an Ohio Limited Liability Company,
Defendant.
/
- ------------------------------------
COMPLAINT
Plaintiff, NUMED HOME HEALTH CARE, INC., a Nevada corporation ("NuMED"),
sues Defendant, TURKEY VULTURE FUND XIII, LTD. ("Turkey Vulture Fund"), and
states:
1. NuMED is a Nevada corporation with its principal place of business in
Pinellas County, Florida.
2. Turkey Vulture Fund is an Ohio limited liability company with its
principal place of business in Mentor, Ohio, and, upon information and belief,
owns approximately 508,500 shares of NuMED stock, which accounts for
approximately 10.2% of the outstanding stock of the company.
3. This Court has jurisdiction over this action pursuant to
28 U.S.C. Section 1331, 15 U.S.C. Section 78aa, and 28 U.S.C. Section 2201.
Venue is proper in the Middle District of Florida pursuant to 28 U.S.C. Section
1391(b) because NuMED's principal place of business is in the Middle District
of Florida, and substantial parts of the events giving rise to this claim
occurred in the Middle District of Florida.
Page 25 of 29 Pages
<PAGE>
4. On or about December 25, 1996, Turkey Vulture Fund filed with the
Securities Exchange Commission (the "SEC") a Schedule 13D (the "Schedule 13D")
as required by 15 U.S.C. Section 78m(d)(1) and Rule 13d-1(a) of the Securities
Exchange Act of 1934. A copy of the Schedule 13D is attached hereto and
incorporated herein as Exhibit "A."
5. On or about January 29, 1997, Turkey Vulture Fund filed with the SEC
its first amendment to the Schedule 13D (the "First Amended Schedule 13D"). A
copy of the First Amended Schedule 13D is attached hereto and incorporated as
Exhibit "B."
6. On or about April 9, 1997, Turkey Vulture Fund filed with the SEC its
second amendment to the Schedule 13D (the "Second Amended Schedule 13D"). A
copy of the Second Amended Schedule D [sic] is attached hereto and incorporated
herein as Exhibit "C."
7. On or about November 12, 1998, Richard M. Osborne, the sole manager of
Turkey Vulture Fund, as a member of the "Committee for a New NuMED," filed with
the SEC a proxy statement (the "Proxy Statement") pursuant to Section 14(a) of
the Securities Exchange Act of 1934. A copy of the Proxy Statement is attached
hereto and incorporated herein as Exhibit "D."
8. This is an action for injunctive relief to cure existing violations of
Section 13(d) and to prevent harm arising from such violations.
9. Section 13(d) requires any person or group who acquires the beneficial
ownership of more than five percent of a class of stock to send the issuer of
the stock, by registered or certified mail, a statement containing the
information required by Schedule 13D. The Schedule 13D must be sent within ten
days after the person acquires the stock. It must reveal the following
information:
Page 26 of 29 Pages
<PAGE>
(a) the background, identity, residence, and citizenship of, and the
nature of such beneficial ownership by, an acquiring person and all other
persons by whom or on whose behalf the purchases have been or are to be
effected;
(b) the source and amount of the funds or other consideration used or
to be used in making the purchases;
(c) any plans or proposals which the acquiring person may have to
liquidate the issuer, sell its assets or merge it with any other persons,
if the purpose of the stock purchases is to acquire control of the
business;
(d) the number of shares which are beneficially owned, and the number
of shares concerning which there is a right to acquire, directly or
indirectly, by the acquiring person or any associate of such person; and
(e) information regarding any contracts, arrangements, or
understandings with any person regarding any securities of the issuer.
10. Rule 13d-2 provides:
If any material change in the facts set forth in Schedule 13D required
by Rule 13d-1(a), including, BUT NOT LIMITED TO, any material increase
or decrease in the percentage of the class beneficially owned, the
person or persons who were required to file the statement shall
promptly file or cause to be filed with the Commission an amendment
disclosing that change. An acquisition or disposition of beneficial
ownership of securities in an amount equal to one percent or more of a
class of securities shall be deemed "material" for purposes of this
Rule 13d-1; acquisitions or dispositions of less than those amounts
may be material, depending upon the facts and circumstances.
11. Neither the Schedule 13D nor any amendments indicate that Turkey
Vulture [sic] is attempting to gain control of NuMED through a proxy fight, oust
current management, and eliminate NuMED's staggered Board of Directors. Such a
change qualifies as a material change in facts pursuant to Rule 13d-2(a).
Moreover, the Proxy Statement indicates that Turkey Vulture
Page 27 of 29 Pages
<PAGE>
[sic] now holds 508,500 shares of NuMED's common stock. This represents an
increase of 23,500 shares over the Second Amended Schedule [sic]. Thus, Turkey
Vulture [sic] should have promptly filed an amendment to the Schedule 13D.
12. Turkey Vulture Fund violated the requirements of Section 13(d) by,
among other things, failing to timely amend the Schedule 13D to (a) reflect its
true intention, as stated in the Proxy Statement, to oust current management,
gain control of NuMED through a proxy fight, and eliminate NuMED's staggered
Board of Directors, and (b) indicate its increased ownership of shares.
13. NuMED is without an adequate remedy at law.
14. NuMED will likely succeed upon the merits of this lawsuit.
15. Without the injunctive relief requested, NuMED will suffer irreparable
harm as a result of the proxy fight initiated by the Turkey Vulture Fund.
16. NuMED has been required to retain the services of Foley & Larder to
pursue this claim.
WHEREFORE, NuMED prays that this Court:
a. Enter a temporary and permanent injunction requiring the Turkey
Vulture Fund to file an amendment to the Schedule 13D, which will
accurately reflect its true purpose;
b. Enter a temporary injunction enjoining Turkey Vulture [sic] from
exercising voting rights and soliciting proxies during the pendancy [sic]
of this lawsuit and an appropriate "cooling-off period," which will permit
the investing public to have a reasonable amount of time to digest any
amendment to the Schedule 13D ordered by this Court;
Page 28 of 29 Pages
<PAGE>
c. Enter a judgment in favor of NuMED for the costs and attorneys'
fees associated with bringing this lawsuit; and
d. Award such other and further relief as the Court deems just and
appropriate.
DATED THIS 17th day of November, 1998.
/s/ James M. Landis
----------------------------------------
JAMES M. LANDIS, ESQUIRE
Florida Bar No. 116760
RICHARD THOMAS PETITT, ESQUIRE
Florida Bar No. 878995
AMEE B. FLOWERS, ESQUIRE
Florida Bar No. 0135690
Foley & Larder
100 N. Tampa Street, Suite 2700
Post Office Box 3391
Tampa, FL 33601-3391
(813) 229-2300
(813) 221-4210 (facsimile)
Attorneys for Plaintiff
Page 29 of 29 Pages
