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As filed with the Securities and Exchange Commission on October 21, 1997
Registration No. 333-29565
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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NCS HealthCare, Inc.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation or organization)
34-1816187
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(I.R.S. Employer Identification No.)
3201 Enterprise Parkway, Suite 220, Beachwood, Ohio 44122 (216) 514-3350
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(I.R.S. Employer Identification No.)
<TABLE>
<CAPTION>
<S> <C>
Copy to:
Jon H. Outcalt Thomas F. McKee, Esq.
NCS HealthCare, Inc. Calfee, Halter & Griswold LLP
3201 Enterprise Parkway, Suite 220 1400 McDonald Investment Center
Beachwood, Ohio 44122 800 Superior Avenue
(216) 514-3350 Cleveland, Ohio 44114
(216) 622-8200
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of the Registration Statement and after
compliance with applicable state and federal laws.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for he same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED OCTOBER 21, 1997
PROSPECTUS
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NCS HEALTHCARE, INC.
1,073,098 Shares
CLASS A COMMON STOCK
($.01 par value)
This Prospectus relates to the offering for resale of 1,073,098 shares of
Class A Common Stock, $.01 par value (the "Class A Common Stock"), of NCS
HealthCare, Inc., a Delaware corporation ("NCS" or the "Company"). All of the
Class A Common Stock being registered may be offered and sold from time to time
by certain selling stockholders of the Company. See "Selling Stockholders" and
"Manner of Offering." The Company will not receive any proceeds from the sale of
the Class A Common Stock by the Selling Stockholders.
The Company's Class A Common Stock is traded on the Nasdaq National Market
under the symbol "NCSS." On October 20, 1997 the last reported sale price for
the Class A Common Stock was $24.125 per share.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus (including the
material incorporated herein by reference) and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company or by any other person deemed to be an underwriter. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy the shares covered by this Prospectus by anyone in any state in which such
offer or solicitation is not authorized or in which the person making such offer
or solicitation is not qualified to do so to anyone to whom it is unlawful to
make such offer or solicitation. Neither the delivery of this Prospectus nor any
sale made hereunder shall under any circumstances create an implication that
there has been no change in the affairs of the Company since the date hereof.
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The date of this Prospectus is October ___, 1997
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THE COMPANY
The Company has its principal executive offices at 3201 Enterprise Parkway,
Suite 220, Beachwood, Ohio 44122, and its telephone number is (216) 514-3350. As
used in this Prospectus, the "Company" shall refer to NCS HealthCare, Inc. and
its consolidated subsidiaries, unless the context indicates otherwise.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission") which may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549. Such reports, proxy statements and other
information filed by the Company also are available for inspection and copying
at the Commission's Regional Offices located at: Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and at Seven World
Trade Center, 13th Floor, New York, New York 10048-1102. Such material may also
be accessed electronically by means of the Commission's home page on the
Internet at http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company will provide, without charge, to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any and all of the information that has been incorporated by reference in
this Prospectus (not including exhibits to the information that is incorporated
by reference unless such exhibits are specifically incorporated by reference
into the information that the Prospectus incorporates). Such request should be
directed to Kristen H. Schulz, NCS HealthCare, Inc., 3201 Enterprise Parkway,
Suite 220, Beachwood, Ohio 44122, telephone (216) 514-3350.
The Company hereby incorporates the following documents by reference in
this Prospectus: (a) the Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1997; and (b) the Company's Form 8-A Registration Statement.
All documents subsequently filed pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act prior to the termination of this offering shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents.
SELLING STOCKHOLDERS
The shares of Class A Common Stock covered by this Prospectus are being
offered and sold by the stockholders of the Company listed below (the "Selling
Stockholders"). The Company issued such Class A Common Stock to the Selling
Stockholders in connection with the acquisition, by the Company or certain of
its wholly owned subsidiaries, of stock or assets of various institutional
pharmacies located in the United States. Certain of the Selling Stockholders
have entered into employment agreements and noncompetition agreements with the
Company and/or certain of its wholly owned subsidiaries.
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The following table shows as to each Selling Stockholder the number of
shares owned by each Selling Stockholder prior to this offering and the number
of shares of Class A Common Stock being registered hereby:
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Shares Owned Number of
Prior Shares
Name to Offering to be Registered
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<S> <C> <C>
Michael F. Fecteau (1) ....................................... 4,829 4,829
Richard P. Legere (1) ........................................ 1,286 1,286
Aldo A. Palombo, Jr. (2) ..................................... 9,751 9,751
Daniel Palombo (2) ........................................... 9,751 9,751
Stephen G. Scott (2) ......................................... 2,166 2,166
Pharmacy Asset Corp. (3) ..................................... 273,245 273,245
Willis V. Smith (4) .......................................... 56,400 56,400
Charles Oliver (4) ........................................... 8,338 8,338
Med-Equip Homecare Equipment Service, Inc. (4) ............... 17,745 17,745
Thrifty Medical of Tulsa, L.L.C. (4) ......................... 3,393 3,393
Chad A. Stettler (5) ......................................... 4,724 4,724
Joe B. Clark (5) ............................................. 1,574 1,574
William A. Anderson (6) ...................................... 1,557 1,557
Kevin P. Martyn (6) .......................................... 779 779
Clinical Health Systems Northwest, Inc. (6) .................. 3,114 3,114
Clinical Health Systems - Washington, Inc. (6) ............... 39,240 39,240
Health Service Pharmacy, Inc. (6) ............................ 19,931 19,931
Paul B. Prentis (7) .......................................... 12,001 901
Gerald A. Warnack (7) ........................................ 10,901 901
David Scott (8) .............................................. 53,693 53,693
Paul LoSacco (8) ............................................. 19,009 19,009
Glen Lloyd (8) ............................................... 19,009 19,009
Thomas Weiss (8) ............................................. 19,009 19,009
Guerino J. Mirarchi (8) ...................................... 19,009 19,009
W.P. Malone, Inc. (9) ........................................ 74,074 74,074
</TABLE>
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<TABLE>
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Shares Owned Number of
Prior Shares
Name to Offering to be Registered
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Michael E. Loomis (10) ....................................... 55,940 55,940
Adrian Huang (10) ............................................ 25,481 25,481
Colette D. Rahill (10) ....................................... 4,539 4,539
The Washington Trust Company, as Trustee of the Bethany
C. Loomis Trust dated December 30, 1996 (10) ................. 12,214 12,214
The Washington Trust Company as Trustee of the Andrew T.
Loomis Trust dated December 30, 1996 (10) .................... 12,214 12,214
Wabash Valley Rehabilitation, Inc. (11) ...................... 4,506 4,506
Richard R. Thorne and Dana S. Easton, Trustees of the
Richard R. Thorne and Dana S. Easton Trust (12) .............. 15,384 15,384
Stanley W. Goldenberg and Suzyn Goldenberg, Trustees of
the Goldenberg Family Trust u/d/t dated March 14, 1984,
as amended (13)............................................... 108,970 108,970
Stoll's Services, Inc. (14) .................................. 136,232 106,232
Georges G. Gross (15) ........................................ 32,095 32,095
Keith R. LaFond (15) ......................................... 32,095 32,095
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<FN>
(1) Shares of Class A Common Stock issued in connection with the acquisition of all of the issued and
outstanding capital stock of Uni-Care Health Services, Inc. and Uni-Care Health Services of Maine, Inc.
Upon the acquisition of the stock of Uni-Care Health Services, Inc. and Uni-Care Health Services of
Maine, Inc., Uni-Care Health Services, Inc. entered into an employment agreement with Michael F.
Fecteau whereby he agreed to serve as Director of Business Development until May 15, 2001. In addition,
Uni-Care Health Services of Maine, Inc. entered into an employment agreement with Richard P. Legere
whereby he agreed to serve as Site Manager for five years.
(2) Shares of Class A Common Stock issued in connection with the acquisition of the capital stock of
Advanced Rx Services, Inc. Upon the acquisition of the stock of Advanced Rx Services, Inc., it entered
into separate employment agreements with each of Aldo A. Palombo, Daniel Palombo and Stephen G. Scott
for periods ending June 30, 2000, June 30, 2000 and June 30, 1999, respectively.
(3) Shares of Class A Common Stock issued in connection with the acquisition of assets of IPAC Pharmacy,
Inc.
(4) Shares of Class A Common Stock issued in connection with the acquisition of assets of Med-Equip
Homecare Equipment Service, Inc. and Thrifty Medical of Tulsa, L.L.C. and the stock of Northside
Pharmacy, Inc. by NCS HealthCare of Oklahoma, Inc. In connection with these acquisitions, NCS
HealthCare of Oklahoma, Inc. entered into employment agreements with Willis V. Smith and Charles Oliver
whereby Messrs. Smith and Oliver would be employed by NCS HealthCare of Oklahoma, Inc. for a period of
five years.
</TABLE>
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(5) Shares of Class A Common Stock issued in connection with the acquisition of
assets of IV-Pen Care, Inc. In connection with this transaction, the
Company entered into noncompetition agreements with each of Messrs.
Stettler and Clark for a period until October 1, 1999.
(6) Shares of Class A Common Stock issued in connection with the acquisition of
assets of Clinical Health Systems Northwest, Inc., Clinical Health Systems
- Washington, Inc. and Health Service Pharmacy, Inc. Upon the consummation
of these transactions, NCS HealthCare of Washington, Inc. entered into
employment agreements with each of Messrs. Anderson and Martyn for a period
until November 1, 1999.
(7) Shares of Class A Common Stock issued pursuant to an earn-out arrangement
in connection with the acquisition of assets of TeleRx Pharmacy Services,
Inc. In connection with this acquisition, the Company entered into
employment agreements with Messrs. Prentis and Warnack for a period until
November 1, 1996.
(8) Shares of Class A Common Stock issued in connection with the acquisition of
the stock of Rescot Systems Group, Inc. Subsequent to this acquisition,
Rescot System Group, Inc. entered into employment agreements, each for a
three-year term, with Messrs. Scott, LoSacco, Lloyd, Weiss and Mirarchi.
(9) Shares of Class A Common Stock issued in connection with the acquisition of
assets of W.P. Malone, Inc.
(10) Shares of Class A Common Stock issued in connection with the acquisition of
the stock of Loomis Enterprises, Inc. Subsequent to this acquisition, NCS
HealthCare of Rhode Island, Inc. entered into employment agreements with
Messrs. Loomis and Huang and Ms. Rahill. The employment agreements with
Messrs. Loomis and Huang are for a term of five years, and the employment
agreement with Ms. Rahill is for a period of two years.
(11) Shares of Class A Common Stock issued in connection with the acquisition of
assets of Wabash Valley Rehabilitation, Inc.
(12) Shares of Class A Common Stock issued in connection with the acquisition of
assets of Pharmacare.
(13) Shares of Class A Common Stock issued in connection with the acquisition of
assets of Advanced Pharmaceutical Services, Inc. and the stock of Kinetic
Services, Inc.
(14) Shares of Class A Common Stock issued in connection with the acquisition of
assets of Stoll's Services, Inc.
(15) Shares of Class A Common Stock issued in connection with the acquisition of
assets of the Gross/LaFond Partnership. In connection with this
acquisition, NCS Daven Drug, Inc. entered into employment agreements, each
with a two-year term, with Messrs. Gross and LaFond.
MANNER OF OFFERING
Sales of the shares of Class A Common Stock being registered hereby may be
made in the over-the-counter market or otherwise at prices and at terms then
prevailing or at prices related to the then current market price, or in
negotiated transactions. The shares may be sold by one or more of the following:
(a) a block trade in which the broker or dealer so engaged will attempt to sell
the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (b) purchases by a broker or dealer as
principal and resale by such broker or dealer for its account pursuant to this
Prospectus; and (c) ordinary brokerage transactions and transactions in which
the broker solicits purchasers. In effecting sales, brokers or dealers engaged
by the Selling Stockholders may arrange for other brokers or dealers to
participate. Brokers or dealers will receive commissions or discounts from
Selling Stockholders in amounts to be negotiated immediately prior to sale. Such
brokers or dealers may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"), in connection with
such sales. In addition, any securities covered by this Prospectus which qualify
for sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to
this Prospectus.
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The Company has advised the Selling Stockholders of their obligations under
the Exchange Act to avoid market manipulation of the Class A Common Stock until
the offering pursuant to this Prospectus by all Selling Stockholders has been
completed.
The Company also has advised the Selling Stockholders of their obligations
under the Securities Act to deliver copies of this Prospectus to any purchaser
of their Class A Common Stock.
DESCRIPTION OF CAPITAL STOCK
The Company's Certificate of Incorporation (the "Certificate") authorizes
capital stock consisting of 50 million shares of Class A Common Stock, par value
$.01 per share, 20 million shares of Class B Common Stock, par value $.01 per
share (the "Class B Common Stock"), and one million shares of Preferred Stock,
par value $.01 per share (the "Preferred Stock"). The Company is incorporated
under the General Corporation Law of the State of Delaware (the "Delaware GCL").
COMMON STOCK
At October 14, 1997, there were 11,709,473 shares of Class A Common Stock
and 7,018,824 shares of Class B Common Stock issued and outstanding and options
to purchase 402,274 shares of Class A Common Stock and options to purchase
164,557 shares of Class B Common Stock. In addition, at such date, there were an
aggregate of 314,710 shares of Class A Common Stock reserved for issuance under
the 1996 Long Term Incentive Plan.
The Class A Common Stock and Class B Common Stock are identical in all
material respects except that (i) shares of the Class B Common Stock entitle the
holders thereof to ten votes per share on all matters and shares of the Class A
Common Stock entitle the holders thereof to one vote per share on all matters,
and (ii) the shares of Class B Common Stock are subject to certain restrictions
on transfer. The shares of Class B Common Stock are not transferable except in
certain very limited instances to family members, trusts, other holders of Class
B Common Stock, charitable organizations and entities controlled by such persons
(collectively, "Permitted Transferees"). These restrictions on transfer may be
removed by the Board of Directors if the Board determines that the restrictions
may have a material adverse effect on the liquidity, marketability or market
value of the outstanding shares of Class A Common Stock.
The Class B Common Stock is fully convertible at any time into shares of
Class A Common Stock on a share-for-share basis and will automatically be
converted into shares of Class A Common Stock upon any purported transfer to
non-Permitted Transferees. Once a share of Class B Common Stock has been
converted into a share of Class A Common Stock, such share of Class A Common
Stock cannot thereafter be re-converted into a share of Class B Common Stock.
Because the Class B Common Stock will at all times be convertible into Class A
Common Stock on a share-for-share basis, holders of Class B Common Stock will be
able to sell the equity interest represented by their Class B Common Stock to
persons who are not Permitted Transferees by converting such shares in Class A
Common Stock. As is the case with Preferred Stock and additional Class A Common
Stock, additional Class B Common Stock can be issued at the discretion of the
Board of Directors.
Except as set forth below (and as provided by law and in the Company's
Certificate now in effect), all matters submitted to a vote of the Company's
stockholders will be voted on by holders of Class A Common Stock and Class B
Common Stock voting together as a single class. Holders of outstanding shares of
Class A Common Stock and Class B Common Stock, respectively, vote separately as
a class with respect to amendments to the Certificate of Incorporation which
would increase the authorized number of shares of Class B Common Stock, or which
would make other amendments to the Certificate (other than increases in the
number of authorized shares of Class A Common Stock) that alter or change the
designations or powers or the preferences, qualifications, limitations,
restrictions or the relative or special rights of either the Class B Common
Stock or the Class A Common Stock so as to affect them adversely.
No cash dividend may be declared or paid on the Class B Common Stock unless
an equal or greater dividend is simultaneously declared or paid on the Class A
Common Stock. Otherwise, subject to the rights of
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holders of Preferred Stock, if any, the Class A Common Stock and the Class B
Common Stock rank equally and have equal rights per share with respect to all
dividends and distributions, including distributions upon liquidation of the
Company and consideration to be received upon a merger or consolidation of the
Company or a sale of all or substantially all of the Company's assets. In the
case of stock dividends or stock splits, however, only shares of Class A Common
Stock can be distributed in respect of outstanding Class A Common Stock and only
shares of Class B Common Stock can be distributed in respect of outstanding
Class B Common Stock.
Neither shares of Class A Common Stock nor shares of Class B Common Stock
can be split, divided or combined unless all outstanding shares of the other
class are correspondingly split, divided or combined.
Because of the restrictions on transfer of the Class B Common Stock, over
time shares of Class B Common Stock having ten votes will (unless the Directors
determine to remove such restrictions) be converted into shares of Class A
Common Stock having one vote, as holders convert their Class B Common Stock into
Class A Common Stock in order to sell their shares. Accordingly, the holders of
Class B Common Stock who continue to hold their Class B Common Stock will
realize over time an increase in their relative voting power in the Company. The
Directors and executive officers of the Company and their affiliates
collectively own approximately 67.3% of the total voting power of the Company. A
substantial portion of this group's share ownership consists of Class B Common
Stock. If those individuals continue to hold their Class B Common Stock for the
foreseeable future, the degree of control of the Company by these Directors and
executive officers and their affiliates, and their percentage of the total
voting power of the Company, will increase over time.
Holders of Class A Common Stock and Class B Common Stock do not have any
preemptive rights or rights to subscribe for additional securities of the
Company and are not subject to any further calls or assessments by the Company.
There are no redemption or sinking fund provisions applicable to the Class A
Common Stock or the Class B Common Stock. The shares of Class A Common Stock are
not convertible into any other series or class of the Company's securities.
Subject to the preferences applicable to the Preferred Stock, if any,
outstanding at the time, holders of shares of Class A Common Stock and Class B
Common Stock are entitled to dividends, if, when and as declared by the Board of
Directors from funds legally available therefor and are entitled, in the event
of liquidation, to share ratably in all assets remaining after payment of
liabilities and Preferred Stock preferences, if any. See "Preferred Stock."
PREFERRED STOCK
The Company's Board of Directors is authorized, without further action by
the stockholders, to issue, from time to time, not in excess of one million
shares of Preferred Stock in one or more classes or series, and to fix or alter
the designations, powers and preferences, and relative, participating, optional
or other rights, if any, and qualifications, limitations or restrictions
thereof, including, without limitation, dividend rights (and whether dividends
are cumulative), conversion rights, if any, voting rights (including the number
of votes, if any, per share), rights and terms of redemption (including sinking
fund provisions, if any), redemption price and liquidation preferences of any
unissued shares or wholly unissued series of Preferred Stock, and the number of
shares constituting any such class or series and the designation thereof, and to
increase or decrease the number of shares of any such class or series subsequent
to the issuance of shares of such class or series, but not below the amount then
outstanding. Currently, there are no shares of Preferred Stock outstanding, and
the Company has no present intention to issue any Preferred Stock.
TWO-TIER BUSINESS COMBINATION PROVISIONS
The Certificate contains a provision designed to help assure that
stockholders of the Company receive equitable treatment, beyond that presently
provided by the applicable state law, in the event of certain Business
Combinations (as defined) between the Company and another corporation or entity.
Delaware law generally requires the affirmative vote of the holders of at least
a majority of the outstanding shares entitled to vote to approve a merger,
consolidation or disposition of all or substantially all of the Company's
assets. The Certificate raises the affirmative vote required to approve such a
business combination to at least 66 2/3% of the total voting power of the
Company's outstanding shares of Class A Common Stock and Class B Common Stock,
unless a Fair Price (as described herein) is paid to each of the stockholders of
the Company.
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The Board of Directors is concerned about the partial or "two-step" tender
offer technique of accomplishing corporate takeovers. The first step in this
technique is a tender offer made by another corporation or entity seeking
control at a price that often substantially exceeds the market value of the
target corporation's stock. After acquiring a controlling number of shares, the
entity will then effectuate the second step: a business combination with the
target corporation designed to eliminate the then remaining stockholders'
interest in the corporation. The terms of the second step business combination
may not reflect arms-length bargaining and therefore may not assure proper
treatment of the stockholders remaining after the tender offer.
The Board of Directors intends to prevent persons who might acquire a
controlling interest in the Company from imposing a business combination on
minority stockholders unless such controlling persons are able and willing to
deal fairly with minority stockholders by paying them a fair price for their
interest in the Company. The Board recognizes that this fair price requirement
might have the effect of discouraging unilateral tender offers and other
takeover proposals to acquire control of the Company, as well as unsolicited
acquisitions of the Company's outstanding shares.
The Certificate requires, in addition to any required vote by the then
outstanding Preferred Stock, the vote of not less than 66 2/3% of the then
outstanding shares of the Company's Class A Common Stock and Class B Common
Stock to approve any Business Combination of the Company with any Related Person
(as defined) unless certain conditions have been met. In addition, the 66 2/3%
vote must include the affirmative vote of 51% of the outstanding shares of Class
A Common Stock and Class B Common Stock held by stockholders other than the
Related Person. Accordingly, the actual vote required to approve the Business
Combination may be greater than 66 2/3%, depending upon the number of shares
controlled by the Related Person. A Related Person is defined to include any
person or entity which is, directly or indirectly, the beneficial owner of
shares of Class A Common Stock representing 5% or more of the total voting power
of the Company, including any affiliate or associate of such person or entity.
The term Business Combination is defined to include virtually any transaction
between the Company and a Related Person, including a merger, consolidation or
sale of assets.
The 66 2/3% requirement and the 51% requirement are not applicable, however
(and, therefore, the proposed Business Combination could be approved by a simple
majority of the stockholders unless otherwise required by Delaware law), if the
Related Person pays a Fair Price to the Company's stockholders in the
transaction or if a majority of the Board of Directors approves the transaction.
Under the terms of the Certificate, the Fair Price must be a least equal to the
greatest of (i) the highest price paid or agreed to be paid by the Related
Person to purchase any shares of the Company's common equity securities, (ii)
the highest market price of the common equity securities during the 24-month
period prior to the taking of such vote, and (iii) the per share book value of
the Class A Common Stock at the end of the calendar quarter immediately
preceding the taking of such vote. In addition, the Fair Price consideration to
be received by the Company's stockholders must be of the same form and kind as
the most favorable form and kind of consideration paid by the Related Person in
acquiring any of its shares of common equity securities of the Company.
The Certificate provides that the above provisions regarding two-tier
business combinations may not be amended, altered, changed or repealed except by
the affirmative vote of at least 66 2/3% of the shares of the common equity
securities entitled to vote at a meeting of the stockholders called for the
consideration of such amendment, alteration, change or repeal, and at least 51%
of the outstanding shares entitled to vote thereon held by stockholders who are
not Related Persons, unless such proposal shall have been proposed by a majority
of the Board of Directors.
THE DELAWARE BUSINESS COMBINATION ACT
Section 203 of the Delaware GCL (the "Delaware Business Combination Act")
imposes of three-year moratorium on business combinations between a Delaware
corporation whose stock generally is publicly traded or held of record by more
than 2,000 stockholders and an "interested stockholder" (in general, a
stockholder owning 15% or more of a corporation's outstanding voting stock) or
an affiliate or associate thereof unless (a) prior to an interested stockholder
becoming such, the board of directors of the corporation approved either the
business combination or the transaction resulting in the interested stockholder
becoming such, (b) upon consummation of the transaction resulting in the
interested stockholder becoming such, the interested stockholder owns 85% of the
voting
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stock outstanding at the time the transaction commenced (excluding, from the
calculation of outstanding shares, shares beneficially owned by directors who
are also officers and certain employee stock plans) or (c) on or after an
interested stockholder becomes such, the business combination is approved by (i)
the board of directors and (ii) holders of at least 66 2/3% of the outstanding
shares (other than those shares beneficially owned by the interested
stockholder) at a meeting of stockholders. The term "business combination" is
defined generally to include mergers or consolidations between a Delaware
corporation and an "interested stockholder" involving the assets or stock of the
corporation or its majority-owned subsidiaries and transactions which increase
an "interested stockholder's" percentage ownership of stock.
The Delaware Business Combination Act applies to certain corporations
incorporated in the State of Delaware unless the corporation expressly elects
not to be governed by such legislation and sets forth such election in (a) the
corporation's original certificate of incorporation, (b) an amendment to the
corporation's by-laws as adopted by the corporation's board of directors within
90 days of the effective date of such legislation or (c) an amendment to the
corporation's certificate of incorporation or by-laws is approved by (in
addition to any other vote required by law) a majority of the shares entitled to
vote (however, such amendment would not be effective until 12 months after the
date of its adoption and would not apply to any business combination between the
corporation and any person who became an interested stockholder on or prior to
such adoption of such amendment). The Company has not made such an election and,
upon completion of the offering, will be subject to the Delaware Business
Combination Act.
DIRECTOR LIABILITY PROVISIONS
As permitted by the Delaware GCL, the Certificate contains a provision
which eliminates under certain circumstances the personal liability of Directors
(only in their capacities as Directors of the Company) to the Company or its
stockholders for monetary damages for a breach of fiduciary duty as Directors.
The provision in the Certificate does not change a Director's duty of care, but
it does authorize the Company to eliminate monetary liability for certain
violations of the duty, including violations based on grossly negligent business
decisions which may include decisions relating to attempts to change control of
the Company. The provision does not affect the availability of equitable
remedies for a breach of duty of care, such as an action to enjoin or rescind a
transaction involving a breach of fiduciary duty; however, in certain
circumstances equitable remedies may not be available as a practical matter. The
provision in the Certificate in no way affects a Director's liability under the
federal securities laws. In addition, the Company's By-Laws and indemnity
agreements entered into with the Company's Directors and officers indemnify its
past and current Directors and officers for and provides advancements in respect
of all expense, liability and loss reasonably incurred in connection with any
threatened, pending or completed action, suit or proceeding, either civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a Director or officer of the Company, including, in certain
circumstances under the indemnity agreements for settlements in derivative
actions.
CLASSIFIED BOARD
The Certificate divides the Board of Directors into three classes. The
Directors serve staggered terms of three years, with the members of one class
being elected in any year, as follows: (i) James B. Naylor, Phyllis K. Wilson
and A. Malachi Mixon III have been designated as Class I Directors and will
serve until the 1999 annual meeting; (ii) Boake A. Sells and Kevin B. Shaw have
been designated as Class II Directors and will serve until the 1997 annual
meeting; and (iii) Richard L. Osborne and Jon H. Outcalt have been designated as
Class III Directors and will serve until the 1998 annual meeting; and in each
case until their respective successors are elected and qualified.
A classified Board of Directors may have the effect of making it more
difficult to remove incumbent Directors, providing such Directors with enhanced
ability to retain their positions. A classified Board of Directors may also make
the acquisition of control of the Company by a third party by means of a proxy
contest more difficult. In addition, the classification may make it more
difficult to change the majority of Directors for business reasons unrelated to
a change of control.
8
<PAGE> 11
The Certificate provides that the above provisions regarding classification
of the Board of Directors may not be amended, altered, changed or repealed
except by the affirmative vote of at least 66% of the shares of Common Stock
entitled to vote at a meeting of the stockholders called for the consideration
of such amendment, alteration, change or repeal, unless such proposal shall have
been proposed by a majority of the Board of Directors.
GENERAL
It is possible that the existence of the ten vote per share Class B Common
Stock, the Company's ability to issue Preferred Stock, the increased voting
requirements with respect to a Business Combination provided for in the
Certificate, the provisions of the Delaware Business Combination Act and the
division of the Board of Directors of the Company into classes as provided in
the Certificate, may discourage other persons from making a tender offer for or
acquisitions of substantial amounts of the Company's Class A Common Stock. This
could have the incidental effect of inhibiting changes in management and may
also prevent temporary fluctuations in the market price of the Company's Class A
Common Stock which often result from actual or rumored takeover attempts. In
addition, the limited liability provisions in the Certificate with respect to
Directors and officers may discourage stockholders from bringing a lawsuit
against Directors for breach of their fiduciary duty and may also have the
effect of reducing the likelihood of derivative litigation against Directors and
officers, even though such an action, if successful, might otherwise have
benefited the Company and its stockholders. Furthermore, a stockholder's
investment in the Company may be adversely affected to the extent that cost of
settlement and damage awards against the Company's Directors and executive
officers are paid by the Company pursuant to the indemnification provisions
contained in the Company's By-Laws and indemnity agreements described above.
TRANSFER AGENT AND REGISTRAR
The Company's Transfer Agent and Registrar for the Class A Common Stock is
National City Bank, Cleveland, Ohio.
VALIDITY OF SHARES
The validity of the Class A Common Stock offered hereby will be passed upon
for the Company by Calfee, Halter & Griswold LLP, Cleveland, Ohio.
EXPERTS
The consolidated financial statements of NCS HealthCare, Inc. and its
subsidiaries included in NCS HealthCare, Inc.'s Annual Report on Form 10-K for
the year ended June 30, 1997, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
9
<PAGE> 12
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS.
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses payable by the
Registrant in connection with the sale and distribution of the Class A Common
Stock registered hereby:
<TABLE>
<S> <C>
SEC Registration Fee ....................................... $ 8,658
---------
Accounting Fees ............................................ $ 7,500
---------
Fees and Expenses of Counsel ............................... $ 7,500
---------
Miscellaneous .............................................. $ 342
---------
Total ............................................. $ 24,000
</TABLE>
=========
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law sets forth the
conditions and limitations governing the indemnification of officers, directors
and other persons. Section 145 provides that a corporation shall have the power
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or contemplated action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation or was serving at the
request of the corporation in a similar capacity with another corporation or
other entity, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement incurred in connection therewith if he acted in good
faith and in a manner that he reasonably believed to be in the best interests of
the corporation. With respect to a suit by or in the right of the corporation,
indemnity may be provided to the foregoing persons under Section 145 on a basis
similar to that set forth above, except that no indemnity may be provided in
respect of any claim, issue or matter as to which such person has been adjudged
to be liable to the corporation unless and to the extent that the Delaware Court
of Chancery or the court in which such action, suit or proceeding was brought
determines that despite the adjudication of liability but in view of all the
circumstances of the case such person is entitled to indemnity for such expenses
as the court deems proper. Moreover, Section 145 provides for mandatory
indemnification of a director, officer, employee or agent of the corporation to
the extent that such person has been successful in defense of any such action,
suit or proceeding and provides that a corporation may pay the expenses of an
officer or director in defending an action, suit or proceeding upon receipt of
an undertaking to repay such amounts if it is ultimately determined that such
person is not entitled to be indemnified. Section 145 establishes provisions for
determining that a given person is entitled to indemnification, and also
provides that the indemnification provided by or granted under Section 145 is
not exclusive of any rights to indemnity or advancement of expenses to which
such person may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
The Registrant's By-laws provides that the Registrant shall indemnify, to
the fullest extent permitted by Delaware law, any Director or officer who was or
is a party or is threatened to be made a party to any action, suit or proceeding
by reason of the fact that he or she, or a person of he or she is the legal
representative, is or was a Director or officer of the Registrant, or is or was
serving at the request of the Registrant as a Director, officer, partner,
trustee, employee or agent of another entity, against all expenses, liabilities
and losses (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties or amounts paid in settlement) reasonably incurred by such person in
connection therewith. In addition, provisions of The Registrant's By-laws
provide for the advancement of expenses, including attorneys' fees, incurred by
a Director or officer of the Registrant in defending any proceeding for which
indemnification is provided under the By-laws upon receipt of an undertaking to
repay such amounts if it is ultimately determined that he or she is not entitled
to be indemnified by the Registrant as authorized in the By-laws. In addition,
the By-laws permit the Registrant to maintain insurance, at its expense, to
protect itself and any of its Directors or officers or individuals serving at
the request of the registrant as a director, officer, partner, trustee,
II-1
<PAGE> 13
employee or agent of another entity, against any expense, liability or loss,
whether or not the Registrant would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law.
Section 102 (b) of the Delaware General Corporation Law permits
corporations to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of the
director's duty of care. Accordingly, the Registrant's Amended Certificate of
Incorporation provides that a Director of the Registrant shall not be personally
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except for liability (i) for any breach of the
Director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law or (iv) for any transaction from which the Director derived an improper
personal benefit. The Registrant's Amended Certificate of Incorporation further
provides that any repeal, amendment or other modification of the foregoing
provisions will not affect the liability or alleged liability of any Director of
the corporation then existing with respect to any state of facts then or
theretofore existing or any action, suit or proceeding theretofore or thereafter
brought or threatened based in whole or in part upon any such state of facts.
In addition to the foregoing, the Registrant has entered into indemnity
agreements with its executive officers and Directors. The indemnity agreements
provide that such persons will be indemnified to the fullest extent permitted by
law against all expenses (including attorneys' fees), judgments, fines, amounts
paid or incurred by them for settlement in any action or proceeding on account
of their service as a Director or officer of the Registrant or of any subsidiary
of the Registrant or of any other entity in which they are serving at the
request of the Registrant.
The agreements bind the registrant to provide indemnification to Directors
and officers whether or not the Registrant maintains Directors and officers
liability insurance coverage and regardless of any future changes in the
By-laws. The protection to be afforded Directors and officers by the agreements
is broader than that provided under the indemnification provisions contained in
the By-laws, in that the agreements expressly provide for the advancement of
expenses and for indemnification with respect to amounts paid in settlements of
derivative actions.
Item 16. EXHIBITS.
See the Exhibit Index at page E-1 of this Registration Statement.
Item 17. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during the period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or event arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
II-2
<PAGE> 14
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(2) The undersigned Registrant hereby undertakes that for the purpose
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted for Directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a Director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such Director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Cleveland and State of Ohio, as of the
21st day of October, 1997.
NCS HEALTHCARE, INC.
By: /s/ Jon H. Outcalt
-----------------------------------
Jon H. Outcalt
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities indicated on October 21, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Chairman of the Board of Directors
- --------------------------------------------
Jon H. Outcalt
/s/ Kevin B. Shaw President, Chief Executive Officer and Director
- --------------------------------------------
Kevin B. Shaw (Principal Executive Officer)
* Chief Financial Officer
- --------------------------------------------
Jeffrey R. Steinhilber (Principal Accounting and Financial Officer)
* Director
- --------------------------------------------
A. Malachi Mixon III
* Director
- --------------------------------------------
Boake A. Sells
* Director
- --------------------------------------------
James B. Naylor
* Director
- --------------------------------------------
Richard L. Osborne
* Director
- --------------------------------------------
Phyllis K. Wilson
- -------------------------
<FN>
* The undersigned has executed this Amendment No. 1 to the Registration
Statement on behalf of each of the persons named above pursuant to Powers
of Attorney filed with the Securities and Exchange Commission.
/s/ Kevin B. Shaw
--------------------------------------------
Kevin B. Shaw
</TABLE>
II-4
<PAGE> 16
NCS HEALTHCARE, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
NO. -----------
---
<S> <C>
2.1 Stock Purchase Agreement, dated December 1994, by and among Aberdeen Group, Inc. and
Calvin Hunsicker. (A)
2.2 Asset Purchase Agreement, dated May 10, 1995, by and among Quality Health Care NCS,
Inc., Low Cost Health Care of Indiana, Inc., Marvin R. Richardson, Melanie A. Richardson
and Richard A. Freese. (A)
2.3 Stock Purchase Agreement, dated September 1, 1995, by and among Aberdeen Group, Inc. and
each of the owners of shares of, capital stock of Corinthian Healthcare Systems, Inc.
(A)
2.4 Stock Purchase Agreement, dated as of October 1, 1995, by and between James F.J. Kane
and Aberdeen Group, Inc. (A)
2.5 Certificate of Ownership and Merger of Aberdeen Group, Inc. with and into the Company.
(A)
2.6 Stock Purchase Agreement, dated May 15, 1996, by and among the Registrant and the owners
of capital stock of Uni-Care Health Services, Inc., a New Hampshire corporation and
Uni-Care Health Services of Maine, Inc., a New Hampshire corporation. (B)
2.7 Asset Purchase Agreement, dated as of July 31, 1996, by and among the Registrant, NCS
HealthCare of Oregon, Inc., an Ohio corporation, IPAC Pharmacy, Inc., an Oregon
corporation and Prestige Care, Inc., a Washington corporation. (C)
2.8 Asset Purchase Agreement, dated August 13, 1996, by and among NCS HealthCare of
Oklahoma, Inc., an Oklahoma corporation, Med-Equip Homecare Equipment Service, Inc., an
Oklahoma corporation, Gail Benjamin, Willis V. Smith and John Tarr. (D)
2.9 Asset Purchase Agreement, dated August 13, 1996, by and among Thrifty Medical of Tulsa,
L.L.C., an Oklahoma limited liability company, Willis V. Smith, Charles Oliver and NCS
HealthCare of Oklahoma, Inc., an Oklahoma corporation. (D)
2.10 Agreement of Merger, dated August 13, 1996, by and among Northside Pharmacy, Inc., an
Oklahoma corporation, Willis V. Smith, Charles Oliver, the Willis Vernon Smith Unitrust
Dated August 8, 1996, NCS HealthCare of Oklahoma, Inc., an Oklahoma corporation, and the
Company. (D)
2.11 Stock Purchase Agreement, dated August 13, 1996, by and among the Willis Vernon Smith
Unitrust Dated August 8, 1996, Charles Oliver, Willis V. Smith and the Registrant. (D)
4.1 Specimen certificate of the Company's Class A Common Stock. (A)
4.2 Specimen certificate of the Company's Class B Common Stock. (A)
4.3 Credit Agreement, dated as of April 5, 1995, by and among Aberdeen Group, Inc.,
</TABLE>
E-1
<PAGE> 17
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
NO. -----------
---
<S> <C>
National City Bank, Society National Bank, and National City Bank, as Agent. (A)
4.4 First Amendment to Credit Agreement, dated as of August 31, 1995, by and among Aberdeen
Group, Inc., National City Bank, Society National Bank, and National City Bank, as
Agent. (A)
4.5 Second Amendment to Credit Agreement by and among Aberdeen Group, Inc., National City
Bank, Society National Bank, and National City Bank, as Agent. (A)
4.6 Amended and Restated Promissory Note, dated August 31, 1995. (A)
4.7 Commercial Demand Note, dated November 1, 1995. (A)
4.8 Form of Convertible Subordinated Debenture Due September 30, 1996. (A)
4.9 Waiver Letter, dated as of January 25, 1996, by and among Aberdeen Group, Inc., National
City Bank and Society National Bank. (A)
4.10 Indenture, dated August 13, 1997, between the Company and National City Bank, as
Trustee. (E)
4.11 Form of 53/4% Convertible Subordinated Debentures due 2004. (E)
5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity of the shares of Class A
Common Stock. *
10.1 Credit Agreement, dated August 1, 1997, by and among the Company, the lending
institutions named therein and KeyBank National Association, as Administrative Agent.
(E)
23.1 Consent of Calfee, Halter & Griswold LLP (included in Exhibit 5.1 of this Registration
Statement). *
23.2 Consent of Ernst & Young LLP.
- -----------------
<FN>
* Previously filed.
(A) Incorporated herein by reference to the appropriate exhibit to the Company's Registration
Statement on Form S-1 (Reg. No. 33-80455).
(B) Incorporated herein by reference to the appropriate exhibit to the Company's Current Report on
Form 8-K, dated May 15, 1996, as amended (File No. 0-027602).
(C) Incorporated herein by reference to the appropriate exhibit to the Company's Current Report on
Form 8-K, dated August 1, 1996, as amended (File No. 0-027602).
(D) Incorporated herein by reference to the appropriate exhibit to the Company's Current Report on
Form 8-K, dated August 13, 1996 (File No. 0-027602).
(E) Incorporated herein by reference to the appropriate exhibit to the Company's Registration
Statement on Form S-3, as amended (Reg. No. 333-35551).
</TABLE>
E-2
<PAGE> 18
E-3
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the references to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3) and related Prospectus
of NCS HealthCare, Inc. for the registration of 1,073,098 shares of its Class A
Common Stock and to the incorporation by reference therein of our report dated
August 1, 1997, with respect to the consolidated financial statements of NCS
HealthCare, Inc. and subsidiaries incorporated by reference in its Annual Report
(Form 10-K) for the year ended June 30, 1997 filed with the Securities and
Exchange Commission.
Ernst & Young LLP
Cleveland, Ohio
Dated: October 17, 1997
