<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 3, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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NCS HEALTHCARE, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 34-1816187
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
3201 Enterprise Parkway, Suite 220, Beachwood, Ohio 44122 (216) 464-5154
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
--------
<TABLE>
<CAPTION>
<S> <C>
Aberdeen Group, Inc. 1995 Amended and Restated NCS HealthCare, Inc. 1996 Long Term Incentive Plan
Employee Stock Purchase and Option Plan
December 3, 1993 Amended and Restated Stock Option December 28, 1994 Amended and Restated Stock Option
Agreement by and between Aberdeen Group, Inc. and Richard Agreement by and between Aberdeen Group, Inc. and Jeffrey
L. Osborne, as amended December 7, 1995 R. Steinhilber, as amended December 7, 1995
(Full Titles of the Plans)
Copy to:
Jon H. Outcalt Thomas F. McKee, Esq.
Chairman of the Board Calfee, Halter & Griswold LLP
NCS HealthCare, Inc. 1400 McDonald Investment Center
3201 Enterprise Parkway, Suite 220 800 Superior Avenue
Beachwood, Ohio 44122 Cleveland, Ohio 44114
(216) 464-5154 (216) 622-8200
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
Proposed
Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Aggregate Offering
Registered Registered Per Share (1) Price (1) Amount of Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, $.01 par
value per share, issuable upon
exercise of options 883,528 (2) $31.750 $28,052,014 $8,276
============================================================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee and based upon the average of the high
and low prices as quoted on The Nasdaq Stock Market for March 30, 1998.
(2) Of the 883,528 shares of Class A Common Stock being registered, an
aggregate of (i) 18,978 shares are issuable upon exercise of options
granted pursuant to the Aberdeen Group, Inc. 1995 Amended and Restated
Employee Stock Purchase and Option Plan, (ii) 700,000 shares are
issuable upon exercise of options granted pursuant to the NCS
HealthCare, Inc. 1996 Long Term Incentive Plan, (iii) 46,092 shares are
issuable upon exercise of options granted pursuant to the December 3,
1993 Amended and Restated Stock Option Agreement by and between
Aberdeen Group, Inc. and Richard L. Osborne, as amended December 7,
1995, and (iv) 118,458 shares issuable upon exercise of options granted
pursuant to the December 28, 1994 Amended and Restated Stock Option
Agreement by and between Aberdeen Group, Inc. and Jeffrey R.
Steinhilber, as amended December 7, 1995.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of NCS HealthCare, Inc. (the "Company"),
previously filed with the Securities and Exchange Commission, are incorporated
herein by reference:
1. The Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1997;
2. The Company's Quarterly Reports on Form 10-Q for the
periods ended September 30, 1997 and December 31,
1997;
3. The Company's Current Reports on Form 8-K, dated
January 6, 1998 and January 30, 1998; and
4. The Company's Registration Statement on Form 8-A.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in the Registration Statement and to be a part hereof from the date of
filing of such documents, other than the portions of such documents which by
statute, by designation in such document or otherwise, are not deemed to be
filed with the Commission or are not required to be incorporated herein by
reference.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
subsequently filed document that also is, or is deemed to be, incorporated by
reference in this Registration Statement modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. 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, as amended, provide that the Registrant shall
indemnify, to the fullest extent
II-1
<PAGE> 3
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 for whom 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, 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 and Restated
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 the indemnitee will be indemnified to the fullest extent permitted
by law against all expenses (including attorneys' fees), judgments, fines or
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 its
Directors and executive 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
executive 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 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index at Page E-1 of this Registration Statement.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any 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
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represents a fundamental change in the
information set forth in the registration
statement;
II-2
<PAGE> 4
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Company
pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) 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.
(3) 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.
(4) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in this
Registration Statement shall be deemed to be a new
registration statement relating to the securities
offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
Directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions
described under Item 6 above, 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 Securities Act of 1933 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 against the
Registrant 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
<PAGE> 5
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Beachwood, State of Ohio, on April 3, 1998.
NCS HEALTHCARE, INC.
By: /s/ Kevin B. Shaw
---------------------------
Kevin B. Shaw, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, hereby constitutes and appoints Jon H. Outcalt, Kevin B. Shaw,
Gerald D. Stethem, Thomas F. McKee and John J. Jenkins, or any one or more of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in any and all capacities, to sign any
or all amendments or post-effective amendments to this Registration Statement,
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
such attorneys-in-fact and agents, or any one of them, full power and authority
to do and perform each and every act and thing requisite and necessary in
connection with such matters and hereby ratifying and confirming all that each
of such attorneys-in-fact and agents or his substitute or substitutes may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on April 3, 1998.
/s/ Jon H. Outcalt Chairman of the Board of Directors
- ------------------------------
Jon H. Outcalt
/s/ Kevin B. Shaw President, Chief Executive Officer
- ------------------------------ and Director (Principal Executive
Kevin B. Shaw Officer)
/s/ Gerald D. Stethem Chief Financial Officer (Principal
- ------------------------------ Accounting and Financial Officer)
Gerald D. Stethem
/s/ A. Malachi Mixon III Director
- ------------------------------
A. Malachi Mixon III
/s/ Boake A. Sells Director
- ------------------------------
Boake A. Sells
/s/ Richard L. Osborne Director
- ------------------------------
Richard L. Osborne
/s/ Phyllis K. Wilson Director
- ------------------------------
Phyllis K. Wilson
II-4
<PAGE> 6
NCS HEALTHCARE, INC.
EXHIBIT INDEX
-------------
Exhibit No. Exhibit Description
----------- -------------------
4.1 Amended and Restated Certificate of Incorporation of the
Company.
4.2 By-Laws of the Company, as amended.
4.3 Specimen certificate of the Company's Class A Common Stock.
(A)
4.4 Specimen certificate of the Company's Class B Common Stock.
(A)
4.5 Form of 5-3/4% Convertible Subordinated Debentures due 2004.
(B)
4.6 Indenture, dated August 13, 1997, between the Company and
National City Bank, as Trustee. (B)
4.7 1996 Long Term Incentive Plan. (A)
4.8 Aberdeen Group, Inc. 1995 Amended and Restated Employee Stock
Purchase and Option Plan. (A)
4.9 Amended and Restated Stock Option Agreement, dated as of
December 7, 1995, by and between Aberdeen Group, Inc. and
Richard L. Osborne. (A)
4.10 Amended and Restated Stock Option Agreement, dated as of
December 7, 1995, by and between Aberdeen Group, Inc. and
Jeffrey R. Steinhilber. (A)
5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity
of the shares of Class A Common Stock.
15.1 Letter of Ernst & Young LLP regarding unaudited interim
financial information.
23.1 Consent of Calfee, Halter & Griswold LLP (included in Exhibit
5.1 of this Registration Statement).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (see page II-4 of this Registration
Statement).
24.2 Power of Attorney and related certified resolution.
- ------------------
(A) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Registration Statement on Form S-1 (Reg. No. 33-80455).
(B) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Registration Statement on Form S-3, as amended (Reg. No.
333-35551).
E-1
<PAGE> 1
Exhibit 4.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NCS HEALTHCARE, INC.
ARTICLE I: NAME
The name of the Corporation is NCS HealthCare, Inc.
ARTICLE II: REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, Zip Code
19805. The name of the registered agent of the Corporation at such address is
Corporation Service Company.
ARTICLE III: PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware, as the same exists or may hereafter be amended
(the "General Corporation Law").
ARTICLE IV: CAPITAL STOCK
Section 1. Authorized Capital Stock. The total number of shares of all
classes of capital stock which the Corporation shall have authority to issue is
Seventy One Million (71,000,000), consisting of the following classes of capital
stock:
(a) Fifty Million (50,000,000) shares of Class A Common
Stock, par value $.01 per share (the "Class A Common
Stock");
(b) Twenty Million (20,000,000) shares of Class B Common
Stock, par value $.01 per share (the "Class B Common
Stock," and together with the Class A Common Stock,
the "Common Stock"); and
(c) One Million (1,000,000) shares of Preferred Stock,
par value $.01 per share (the "Preferred Stock").
<PAGE> 2
Section 2. Voting Rights.
(a) Each outstanding share of Class A Common Stock shall
entitle the record holder thereof to exercise one (1) vote in the election of
directors of the Corporation and with respect to all other matters upon which
stockholders of the Corporation are entitled to vote.
(b) Each outstanding share of Class B Common Stock shall
entitle the record holder thereof to exercise ten (10) votes in the election of
directors of the Corporation and with respect to all other matters upon which
stockholders of the Corporation are entitled to vote.
(c) Holders of outstanding shares of Class A Common Stock and
Class B Common Stock, respectively, shall vote separately as a class with
respect to any amendment to this Certificate of Incorporation which would
increase the authorized number of shares of Class B Common Stock, or to effect
other amendments to this Certificate of Incorporation (other than amendments
which increase the authorized number of shares of Class A Common Stock, for
which such class voting requirement shall not apply) that alter or change the
powers, preferences or special rights of either the Class A Common Stock or the
Class B Common Stock so as to affect them adversely. Except as provided in the
preceding sentence, and except as is otherwise required by the General
Corporation Law, holders of Class A Common Stock and Class B Common Stock shall
vote together as a single class in the election of directors of the Corporation
and with respect to all other matters submitted to the stockholders of the
Corporation for a vote.
(d) Subject to the rights of the holders of any series of
Preferred Stock with respect to such series of Preferred Stock, any action
required or permitted to be taken by the stockholders of the Corporation must be
effected at an annual or special meeting of stockholders of the Corporation and
may not be effected by any consent in writing by such stockholders.
(e) Every reference in this Certificate of Incorporation to
the "voting power" of shares of capital stock of the Corporation or of shares of
capital stock of any other corporation shall refer to the votes exercisable by
the holders of such shares of capital stock.
(f) Except as otherwise provided in this Article IV, all
shares of Class A Common Stock and all shares of Class B Common Stock shall be
identical, shall entitle the holders thereof to the same powers, preferences,
rights and privileges, and shall be subject to the same qualifications,
limitations and restrictions.
Section 3. Dividends and Distributions. Subject to the preferences
applicable to the Preferred Stock outstanding at any time, holders of shares of
Class A Common Stock and Class B Common Stock shall be entitled to receive such
dividends, payable in cash or otherwise, as may be declared thereon by the Board
of Directors from time to time out of assets or funds of the Corporation legally
available therefor; provided, that no dividend or other distribution may be
declared or paid on the outstanding Class B Common Stock unless a dividend or
other distribution, as the case may be, of equal or greater amount is
simultaneously declared or paid, as the case may be, on the outstanding Class A
Common Stock. The Corporation shall not in any manner subdivide (by stock split
or otherwise) or combine (by reverse stock split or otherwise), or pay or
declare any
<PAGE> 3
stock dividend on, the outstanding shares of either the Class A Common Stock or
the Class B Common Stock unless the outstanding shares of the other class of
common stock shall be proportionately subdivided or combined or the holders of
such other class of common stock shall have received a proportionate stock
dividend. The Corporation may distribute only shares of Class A Common Stock
upon any subdivision, combination or stock dividend in respect of the
outstanding shares of Class A Common Stock, and may distribute only Class B
Common Stock upon any subdivision, combination or stock dividend in respect of
the outstanding shares of Class B Common Stock.
Section 4. Preferred Stock. The Board of Directors of the Corporation
may by resolution authorize the issuance of shares of Preferred Stock from time
to time in one or more series. Shares of Preferred Stock that are redeemed,
purchased or otherwise acquired by the Corporation may be reissued except as
otherwise provided by law. The Board of Directors is hereby authorized to fix or
alter the designations, powers and preferences, and relative, participating,
optional or other rights of the Preferred Stock, if any, and the qualifications,
limitations or restrictions of the Preferred Stock, 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,
as well as the number of members, if any, of the Board of Directors of the
Corporation which each series of Preferred Stock may be entitled to elect),
rights and terms of redemption (including sinking fund provisions, if any),
redemption price and liquidation preferences of any wholly unissued series of
Preferred Stock, and the number of shares constituting any such series and the
designation thereof, and to increase or decrease the number of shares of any
such series subsequent to the issuance of shares of such series, but not below
the number of shares of such series then outstanding. Notwithstanding the
foregoing, the Board of Directors shall have no power to alter the rights of any
shares of Preferred Stock then outstanding without the consent of the holders of
a majority (or other greater proportion established by the Board of Directors)
of the outstanding shares the rights of which are to be altered.
Section 5. Distributions Upon Liquidation. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation in
accordance with applicable law, whether voluntary or involuntary, after payment
or provision for payment of the debts and other liabilities of the Corporation,
the holders of each series of Preferred Stock, if any, shall be entitled to
receive, out of the net assets of the Corporation, an amount for each share of
such series of Preferred Stock equal to the amount fixed and determined by the
Board of Directors in the resolution or resolutions creating such series and
providing for the issuance of such shares, plus an amount equal to all dividends
accrued and unpaid on shares of such series to the date fixed for distribution,
and no more, before any of the assets of the Corporation shall be distributed or
paid over to the holders of Common Stock. After payment in full of said amounts
to the holders of Preferred Stock of all series, the remaining assets and funds
of the Corporation shall be divided ratably among and paid to the holders of
shares of Common Stock in accordance with the number of shares of Common Stock
held by each such holder, without preference or priority of any one class of
Common Stock over any other. If, upon such dissolution, liquidation or winding
up, the assets of the Corporation distributable as aforesaid among the holders
of Preferred Stock of all series shall be insufficient to permit full payment to
them of said preferential amounts, then such assets shall be distributed ratably
among such holders of Preferred Stock in proportion to the respective total
amounts that
<PAGE> 4
they shall be entitled to receive as provided in this Section 5. For purposes of
this Section 5, a consolidation or merger of the Corporation with any other
corporation, or the sale, transfer or lease of all or substantially all of the
assets of the Corporation shall not constitute or be deemed to be a liquidation,
dissolution or winding up of the Corporation.
Section 6. Optional Conversion of Class B Common Stock. The holders of
shares of Class B Common Stock shall have the right, at their option, to convert
any or all of such shares into shares of Class A Common Stock on the terms and
conditions contained in this Section 6.
(a) Each share of Class B Common Stock shall be convertible,
at any time, at the office of any transfer agent for the Class A Common Stock,
and at such other place or places, if any, as the Board of Directors may
determine, into one fully paid and nonassessable share of Class A Common Stock,
upon surrender at such office or other place of the certificate or certificates
representing the shares of Class B Common Stock to be so converted. In no event,
upon conversion of any share of Class B Common Stock into Class A Common Stock,
shall any allowance or adjustment be made in respect of dividends on the Class A
Common Stock or the Class B Common Stock.
(b) Shares of Class B Common Stock shall be deemed to have
been converted and the person converting the same shall become a holder of Class
A Common Stock for the purpose of receiving dividends and for all other purposes
whatsoever as of the date when the certificate or certificates for the shares of
Class B Common Stock to be converted are surrendered to the Corporation as
provided in Section 6(e) of this Article IV.
(c) A number of shares of Class A Common Stock sufficient to
provide, upon the basis hereinbefore set forth, for the conversion of all shares
of Class B Common Stock outstanding shall at all times be reserved by the
Corporation for the exercise of the conversion rights of the holders of shares
of Class B Common Stock.
(d) If the Corporation shall, at any time, be consolidated or
merged with, or shall sell its property as an entirety or substantially as an
entirety to, any other corporation or corporations, or in the event of any
recapitalization or reclassification of the capital stock of the Corporation,
proper provisions shall be made as a part of the terms of each such
consolidation, merger, sale, recapitalization or reclassification so that the
holder of any shares of Class B Common Stock outstanding immediately prior to
such consolidation, merger, sale, recapitalization or reclassification shall
thereafter be entitled to and only entitled to conversion rights upon the terms
and with respect to such securities of the consolidated, merged or purchasing
corporation, or with respect to such securities issued upon such
recapitalization or reclassification, as such holder would have been entitled to
receive upon such consolidation merger, sale, recapitalization or
reclassification if such holder had exercised the conversion privilege
immediately prior thereto. The provisions of this Section 6(d) shall similarly
apply to successive consolidations, mergers, sales, recapitalizations or
reclassifications.
(e) Before any holder of shares of Class B Common Stock shall
be entitled to convert the same into shares of Class A Common Stock, he shall
surrender his certificate or
<PAGE> 5
certificates for such shares of Class B Common Stock to the Corporation at the
office of a transfer agent for the Class A Common Stock, or at such other place
or places, if any, as the Board of Directors may determine, duly endorsed or
accompanied if appropriate by duly executed instruments of transfer, and shall
give written notice to the Corporation at said office or place that he elects so
to convert the shares of Class B Common Stock represented by the certificate or
certificates so surrendered. Unless the shares of Class A Common Stock are to be
issued in the name of the registered owner of the certificates surrendered, the
holder shall state in writing the name or names in which he wishes the
certificate or certificates for shares of Class A Common Stock to be issued, and
shall furnish all requisite stock transfer and stock issuance stamps, or funds
therefor. As soon as practicable after such deposit of certificates for shares
of Class B Common Stock, accompanied by the written notice above prescribed, the
Corporation shall issue and deliver, at the office or place at which such
certificates were deposited, to the person for whose account shares of Class B
Common Stock were so surrendered, or to his assignee or assignees, the
certificates for the number of whole shares of Class A Common Stock to which he
shall be entitled as aforesaid.
(f) The provisions of this Section 6 shall be in addition to
the provisions of Sections 7(a)(1)(D), 7(a)(7)(C), 7(b) and 7(d) of this Article
IV, which require automatic conversion of shares of Class B Common Stock in the
circumstances provided therein.
(g) The shares of Class B Common Stock converted into shares
of Class A Common Stock as provided in this Section 6 or in Section 7 of this
Article IV shall resume the status of authorized but unissued shares of Class B
Common Stock.
Section 7. Limitations on Transfer of Class B Common Stock.
(a) Subject to the provisions of Section 7(i) of this Article
IV, no person holding any shares of Class B Common Stock may transfer, and the
Corporation shall not register the transfer of, such shares of Class B Common
Stock or any interest therein, whether by sale, assignment, gift, bequest,
appointment or otherwise, except to a "Permitted Transferee" of such person. The
term "Permitted Transferee" shall mean and include only such persons as are
described in Sections 7(a)(1) through 7(a)(7) of this Article IV. For purposes
of this Section 7, "Effective Time" shall mean the time at which this Amended
and Restated Certificate of Incorporation became effective pursuant to Section
103 of the General Corporation Law.
(1) In the case of a holder of shares of Class B
Common Stock (a "Holder") who is a natural person and the holder of record and
beneficial owner of shares subject to a proposed transfer, "Permitted
Transferee" means:
(A) The Holder, the spouse of such Holder,
any lineal descendant of a grandparent of such Holder, or any spouse of
such lineal descendant (herein collectively referred to as such
Holder's "Family Members");
(B) The trustee of a trust solely for the
benefit of such Holder or such Holder's Family Members, provided that
such trust may also grant a general or special
<PAGE> 6
power of appointment to one or more of such Holder's Family Members and
may permit trust assets to be used to pay taxes, legacies and other
obligations of the trust or of the estates of one or more of such
Holder's Family Members payable by reason of the death of such Family
Members;
(C) The trustee of a trust which is not
solely for the benefit of such Holder or such Holder's Family Members
so long as such Holder and/or one or more of such Holder's Permitted
Transferees (determined under this Section 7(a)(1)) possess the power
to vote or direct the vote of the shares of Class B Common Stock held
by such trustee;
(D) A corporation if control thereof is
exercisable by shareholders thereof consisting exclusively of, or a
partnership or limited liability company if control thereof is
exercisable by partners or members thereof consisting exclusively of,
the Holder and his Permitted Transferees determined under this Section
7(a)(1), provided that if for any reason, including without limitation
any change in the ownership or the voting rights of the stock of such
corporation, or in such partners or partnership interests, or in such
members or membership interests, or otherwise, such corporation,
partnership or limited liability company would no longer qualify as a
Permitted Transferee of such Holder or his Permitted Transferees, all
shares of Class B Common Stock then held by such corporation,
partnership or limited liability company shall immediately and
automatically, without further act or deed on the part of the
Corporation or any other person, be converted into shares of Class A
Common Stock on a share-for-share basis, and stock certificates
formerly representing such shares of Class B Common Stock shall
thereupon and thereafter be deemed to represent the like number of
shares of Class A Common Stock;
(E) An organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended; or
(F) The executor, administrator or personal
representative of the estate of such Holder or the guardian or
conservator of such Holder adjudged disabled by a court of competent
jurisdiction, acting in his capacity as such.
(2) In the case of a Holder holding the shares
subject to a proposed transfer as trustee pursuant to a trust (other than a
trust described in Section 7(a)(3) below, "Permitted Transferee" means (A) the
person who established such trust and (B) any Permitted Transferee of such
person determined pursuant to Section 7(a)(1) above.
(3) In the case of a Holder holding shares subject to
a proposed transfer as trustee pursuant to a trust which was irrevocable as of
the Effective Time, "Permitted Transferee" means (A) any person to whom or for
whose benefit principal may be distributed either during or at the end of the
term of such trust whether by power of appointment or otherwise and (B) any
Permitted Transferee of any such person determined pursuant to Section 7(a)(1)
above.
(4) In the case of a Holder which is a partnership or
a limited liability
<PAGE> 7
company holding shares subject to a proposed transfer, "Permitted Transferee"
means (A) any partner or member thereof owning more than ten percent (10%) of
the equity of such partnership or limited liability company as of the Effective
Time and (B) any Permitted Transferee of such partner or member.
(5) In the case of a Holder which is a corporation
(other than an organization described in Section 7(a)(1)(E) above) holding
shares subject to a proposed transfer, "Permitted Transferee" means (A) any
stockholder owning more than ten percent (10%) of the equity of such corporation
as of the Effective Time, (B) any Permitted Transferee of such stockholder, (C)
the survivor of a merger or consolidation of such corporation, or (D) any person
who transferred to such corporation the shares of Class B Common Stock that are
the subject of the proposed transfer.
(6) In the case of a Holder who is the executor,
administrator or personal representative of the estate of a deceased Holder, a
guardian or conservator of the estate of a disabled Holder, or a trustee of the
estate of a bankrupt or insolvent Holder, "Permitted Transferee" means a
Permitted Transferee of such deceased, disabled, bankrupt or insolvent Holder as
determined pursuant to this Section 7(a) of this Article IV.
(7) In the case of any Holder, "Permitted Transferee"
includes (A) any holder of record as of the Effective Time of any shares of
Class B Common Stock, provided that if such holder of record is a corporation,
partnership or limited liability company, control thereof is exercisable, as of
the date of a proposed transfer, by shareholders, partners or members thereof,
as the case may be, consisting exclusively of persons who would have been
Permitted Transferees of such corporation, partnership or limited liability
company as of the Effective Time (an "Original Holder"), (B) any holder as of
the Effective Time of an outstanding option to purchase any shares of Class B
Common Stock (an "Original Optionee"), and (C) any Permitted Transferee (as
determined under Sections 7(a)(1) through 7(a)(6) as of the time of the proposed
transfer of shares of Class B Common Stock to such person) of an Original Holder
or of an Original Optionee; provided that, in each case, if a transferee under
this Section 7(a)(7) is a corporation, partnership or limited liability company,
all of the provisions of Section 7(a)(1)(D) of this Article IV shall apply to
such person and the shares transferred to such person.
(b) Notwithstanding anything to the contrary set forth herein,
any holder of shares of Class B Common Stock may pledge such shares to a pledgee
pursuant to a bona fide pledge of such shares as collateral security for
indebtedness due to the pledgee, provided that such shares may not be
transferred to or registered in the name of the pledgee unless such pledgee is a
Permitted Transferee. In the event of foreclosure or other similar action by the
pledgee, such pledged shares of Class B Common Stock shall automatically,
without any act or deed on the part of the Corporation or any other person, be
converted into shares of Class A Common Stock on a share-for-share basis, unless
within five (5) business days after such foreclosure or other similar event such
pledged shares are returned to the pledgor or transferred to a Permitted
Transferee of the pledgor.
(c) For purposes of this Section 7 of this Article IV:
<PAGE> 8
(1) The relationship of any person that is derived by
or through legal adoption shall be considered a natural one.
(2) Each joint owner of shares of Class B Common
Stock shall be considered a Holder of such shares.
(3) A minor for whom shares of Class B Common Stock
are held pursuant to a Uniform Gifts to Minors Act or similar law shall
be considered a Holder of such shares.
(4) Unless otherwise specified, the term "person"
means both natural persons and legal entities.
(5) The giving of a proxy in connection with a
solicitation of proxies subject to the provisions of Section 14 of the
Securities Exchange Act of 1934 (or any successor provision thereof)
and the rules and regulations promulgated thereunder shall not be
deemed to constitute the transfer of an interest in the shares of Class
B Common Stock which are the subject of such proxy.
(d) Any purported transfer of shares of Class B Common Stock
other than to a Permitted Transferee shall automatically, without any further
act or deed on the part of the Corporation or any other person, result in the
conversion of such shares into shares of Class A Common Stock on a
share-for-share basis, effective on the date of such purported transfer. The
Corporation may, as a condition to transfer or registration of transfer of
shares of Class B Common Stock to a purported Permitted Transferee, require that
the record holder establish to the satisfaction of the Corporation, by filing
with the Corporation or the transfer agent an appropriate affidavit or
certificate or such other proof as the Corporation may deem necessary, that such
transferee is a Permitted Transferee.
(e) Anything in this Article IV notwithstanding but subject to
the provisions of Section 7(i), no share of Class B Common Stock may be held of
record but not beneficially by a broker or dealer in securities, a bank or
voting trustee or a nominee of any such, or otherwise held of record but not
beneficially by a nominee of the beneficial owner of such share other than by a
trustee of a trust which would be a Permitted Transferee pursuant to Section
7(a)(1)(B) or 7(a)(1)(C) (any such form of prohibited holding being referred to
herein as holding in "street" or nominee name); provided, however, that if any
person establishes to the satisfaction of the Corporation in accordance with
this Section 7(e) that he is the beneficial owner of any such shares of Class B
Common Stock, the Corporation shall issue such share in the name of such
beneficial owner. Any such beneficial owner who desires to have shares of Class
B common Stock issued in his name in the circumstances described in this Section
7(e) shall file an affidavit or certificate with the Secretary of the
Corporation setting forth the name and address of such beneficial owner and
certifying that he is the beneficial owner of the shares of Class B Common Stock
in question.
(f) The Corporation shall note on all certificates
representing shares of Class B
<PAGE> 9
Common Stock that there are restrictions on transfer and registration of
transfer to the extent imposed by this Section 7.
(g) For purposes of this Section 7, "beneficial ownership"
shall mean possession of the power to vote or to direct the vote or to dispose
of or to direct the disposition of the shares of Class B Common Stock in
question, and a "beneficial owner" of a share of Class B Common Stock shall be
the person having beneficial ownership thereof. For purposes of this Section 7,
"control" shall mean, with respect to a corporation, the power to elect or
appoint a majority of the board of directors or like governing body thereof, and
with respect to a partnership or limited liability company, the power to cause
such partnership or limited liability company to vote and dispose of shares of
Class B Common Stock subject to a proposed transfer to such partnership or
limited liability company.
(h) The Board of Directors may, from time to time, establish
practices and procedures and promulgate rules and regulations, in addition to
those set forth in this Article IV, and amend or revoke any such, regarding the
evidence necessary to establish entitlement of any transferee or purported
transferee of shares of Class B Common Stock to be registered as a Permitted
Transferee. Should the transferee or purported transferee of any such share wish
to contest any decision of the Corporation on the question whether the
transferee or purported transferee has established entitlement to be registered
as a Permitted Transferee of shares of Class B Common Stock, then the Board of
Directors shall in its sole discretion make the final determination.
(i) The restrictions on transfer and the remaining provisions
set forth in this Section 7 (other than this Section 7(i)) shall automatically,
without any act or deed on the part of the Corporation or any other person, be
cancelled (as to all but not less than all shares of Class B Common Stock then
outstanding or thereafter issued) and of no further force or effect if at any
time the Board of Directors, in its sole discretion, determines that the
restrictions on transfer set forth in this Section 7 may have a material adverse
effect on the liquidity, marketability or market value of the outstanding shares
of Class A Common Stock. Such cancellation shall be effective as of the date of
such determination by the Board of Directors or as of such later date as the
Board may determine. Written notice of such determination and cancellation shall
be given to all holders of shares of Class B Common Stock as of such date as
shown on the records of the Corporation or its transfer agent. No such
determination by the Board of Directors shall affect the validity of any act or
the effect of any provision of this Article IV which occurred prior to the
effective date of such cancellation. In the event that a holder of shares of
Class B Common Stock transfers such shares after the effective date of such
cancellation to a non-Permitted Transferee, such transfer shall be deemed to be
an election by such holder to convert such shares into shares of Class A Common
Stock immediately prior to the effectiveness of such transfer, unless the
transferring holder or his agent shall deliver written notice to the Corporation
or its transfer agent at the time of delivery of the certificate or certificates
representing the shares of Class B Common Stock to be transferred that such
holder intends to transfer the shares of Class B Common Stock and that no such
conversion is intended.
<PAGE> 10
ARTICLE V: BOARD OF DIRECTORS
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the powers and
authorities herein or by statute expressly conferred upon it, the Board of
Directors may exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, subject to the provisions of the General
Corporation Law, the Certificate of Incorporation of the Corporation, and the
By-laws of the Corporation. Except as otherwise provided by the General
Corporation Law, any committee of the Board of Directors shall have and may
exercise, to the extent provided in the By-laws of the Corporation or by the
resolutions of the Board of Directors, all of the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation.
The Board of Directors shall consist of not less than three (3) nor
more than fifteen (15) members and shall be divided into three classes,
denominated Class I, Class II and Class III, respectively, which classes shall
be equal in number or as nearly equal as possible. Subject to the foregoing
limitations, the number of Directors of the Corporation shall be fixed by, or in
the manner provided in, the By-laws of the Corporation. In the event the total
number of directors is not evenly divisible by three (3), then an additional
director shall be assigned to Class I if there is one (1) additional director to
be assigned among the classes, and an additional director shall be assigned to
each of Classes I and II if there are two additional directors to be assigned
among the classes. The directors to be elected at each annual meeting of
stockholders shall be only the members of the class whose term of office then
expires. The term of office of the initial directors in each respective class
shall be as follows: (1) directors in Class I shall hold office until the first
annual meeting of stockholders, which shall be held in 1996; (2) directors in
Class II shall hold office until the annual meeting of stockholders held in
1997; and (3) directors in Class III shall hold office until the annual meeting
of stockholders held in 1998. Each director elected at any meeting of
stockholders commencing with the 1996 annual meeting shall serve for a term
ending on the date of the third annual meeting of stockholders following the
meeting at which such director was elected. Elections of directors need not be
by written ballot unless the By-laws of the Corporation shall so provide.
In the event of any increase or decrease in the authorized number of
directors, (1) each director then serving as such shall nevertheless continue as
a director of the class of which such director is a member until the expiration
of such director's current term, or until such director's earlier death,
retirement, resignation, or removal, and (2) the newly created or eliminated
directorships resulting from such increase or decrease shall be apportioned by
the Board of Directors among the three classes of directors as provided above in
this Article V.
Notwithstanding any of the foregoing provisions of this Article V, each
director shall serve until such director's successor is elected and qualified or
until such director's earlier death, retirement, resignation or removal. No
director may be removed except for cause and, in addition to the affirmative
vote which may be required of the holders of any series of Preferred Stock which
may then be outstanding, by the affirmative vote of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of the outstanding shares of
Common Stock of the Corporation entitled to vote thereon. Should a vacancy occur
or be created, whether arising through death, retirement,
<PAGE> 11
resignation or removal of a director or through an increase in the number of
directors, such vacancy shall be filled by the vote of a majority of the
directors then in office, though less than a quorum, or by the sole remaining
director if only one director remains in office. A director so elected to fill a
vacancy shall serve for the remainder of the present term of office of the class
to which such director was elected.
Notwithstanding the foregoing, during any period in which the holders
of any one or more series of Preferred Stock, voting as a class, shall be
entitled to elect a specified number of directors by reason of dividend
arrearages or other contingencies giving them the right to do so, then and
during such time as such right continues, (1) the then otherwise authorized
number of directors shall be increased by such specified number of directors and
the holders of shares of such Preferred Stock, voting as a class, shall be
entitled to elect such specified number of directors in accordance with the
provisions of such Preferred Stock; (2) each such additional director shall
serve until the next annual meeting at which the term of office of his or her
class shall expire and until his or her successor shall be elected and shall
qualify, or until his or her right to hold such office earlier terminates
pursuant to the provisions of such Preferred Stock or series. Whenever the
holders of shares of such Preferred Stock are divested of such right to elect
directors pursuant to the provisions of such Preferred Stock, the terms of
office of all directors elected by the holders of such Preferred Stock pursuant
to such provisions, or elected to fill any vacancies resulting from the death,
resignation or removal of directors so elected by the holders of such Preferred
Stock, shall forthwith terminate and the authorized number of directors shall be
reduced accordingly.
ARTICLE VI: CERTAIN BUSINESS COMBINATIONS
A. In addition to the affirmative vote which may be required of the
holders of any series of Preferred Stock which may then be outstanding, the
affirmative vote of not less than sixty-six and two-thirds percent (66-2/3%) of
the voting power of the outstanding shares of Common Stock of the Corporation,
which shall include the affirmative vote of at least fifty-one percent (51%) of
the voting power of the outstanding shares of Common Stock held by stockholders
other than the "Related Person" (as defined in this Article VI), shall be
required for the approval or authorization of any "business combination" (as
defined in this Article VI) of the Corporation with any Related Person;
provided, however, that such 66-2/3% and 51% voting requirements shall not be
applicable if the stockholders are asked to approve or authorize a particular
business combination which has been authorized and proposed to the stockholders
by action of the Board of Directors of the Corporation by the affirmative vote
of a majority of all directors then in office, or if the stockholders are asked
to approve or authorize a particular business combination as to which both of
the following conditions are satisfied:
(1) The aggregate amount of the cash and the fair market value of
the consideration other than cash to be received per share by
the holders of the Common Stock of the Corporation in such
business combination is equal to or exceeds the greatest of
(a) the highest price per share (including any brokerage
commissions, transfer taxes and soliciting dealer's fees) paid
or agreed to be paid by the Related Person to acquire
beneficial ownership of any share of Common Stock (with
appropriate
<PAGE> 12
adjustments for recapitalizations, and for stock splits, stock
dividends and like distributions); (b) the highest price at
which any share of Common Stock has been listed for sale on
any national securities exchange or in any over-the-counter
market at any time during the twenty-four (24) month period
immediately prior to the taking of such vote; or (c) 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; and
(2) the consideration to be received by holders of Common Stock in
such business combination shall be in the same form and of the
same kind as the most favorable form and kind of consideration
paid by the Related Person in acquiring beneficial ownership
of any of shares of Common Stock already held, directly or
indirectly, by such Related Person.
The determination of a majority of the "Disinterested Directors" (as
defined in this Article VI) of the Corporation, made in good faith and based
upon information known to them after reasonable inquiry, shall be conclusive as
to all facts necessary for compliance with this Article, including, without
limitation, (i) whether any person, partnership, corporation or firm is a
Related Person or affiliate or associate as defined herein, and (ii) the most
favorable form and kind of consideration paid by the Related Person in acquiring
beneficial ownership of shares of Common Stock.
B. For the purposes of this Article VI:
(1) The term "business combination" shall mean (a) any merger
or consolidation of the Corporation with or into a Related Person, (b) any sale,
lease, exchange, transfer or other disposition, including, without limitation, a
mortgage or any other security device, of all or any substantial part of the
assets of the Corporation (including, without limitation, any voting securities
of a subsidiary) or of a subsidiary, to a Related Person, (c) any merger or
consolidation of a Related Person with or into the Corporation or a subsidiary
of the Corporation, (d) any sale, lease, exchange, transfer or other disposition
of all or any substantial part of the assets of a Related Person to the
Corporation or a subsidiary of the Corporation, (e) the reclassification of the
shares of stock of the Corporation generally possessing voting rights in
elections for directors, the purchase by the Corporation of such shares, or the
issuance by the Corporation of shares of any securities convertible thereto or
exchangeable therefor which in any such case has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding shares of
any class of equity or convertible securities of the Corporation which are
directly or indirectly owned by any Related Person, or (f) any agreement,
contract or other arrangement providing for any of the transactions described in
this definition of business combination.
(2) The term "Related Person" shall mean and include any
individual, corporation, partnership or other person or entity which, together
with its "affiliates" and "associates," "beneficially" owns (as those terms are
defined in the Securities Exchange Act of 1934 and in the rules thereunder), in
the aggregate, shares of Common Stock of the Corporation representing five
percent (5%) or more of the voting power of the outstanding shares of Common
Stock of the Corporation, and any "affiliate" or "associate" of any such
individual, corporation,
<PAGE> 13
partnership or other person or entity; provided that shares held or over which
such entity has the power to vote or otherwise control as a trustee, plan
administrator, officer of the Corporation or in a similar capacity under an
employee benefit plan of the Corporation or any employee benefit plan of an
affiliate of the Corporation shall not be deemed to be beneficially owned for
purposes of this definition.
(3) The term "substantial part" shall mean more than ten
percent (10%) of the total consolidated assets of the Corporation as of the end
of its most recent fiscal year ended prior to the time the determination is
made.
(4) Without limitation, any shares of Common Stock of the
Corporation which any Related Person has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise, shall be deemed beneficially owned by such Related Person.
(5) The term "consideration other than cash" shall include,
without limitation, outstanding Common Stock of the Corporation retained by its
existing stockholders in the event of a business combination with a Related
Person in which the Corporation is the surviving corporation.
(6) The term "Disinterested Director" means any member of the
Board of Directors of the Corporation who is not the Related Person or an
affiliate or associate of the Related Person and was a member of the Board prior
to the time that the Related Person became the Related Person, and any successor
of a Disinterested Director who is not the Related Person or an affiliate or
associate of the Related Person and is recommended to succeed a Disinterested
Director by a majority of the Disinterested Directors then in office.
ARTICLE VII: AMENDMENTS
The Corporation reserves the right to amend, alter or repeal any
provision contained in this Certificate of Incorporation (including such
provisions as may hereafter be added hereto) in the manner now or hereafter
prescribed by law, and all rights and privileges conferred by this Certificate
of Incorporation upon the stockholders and directors of the Corporation and any
other persons are conferred subject to the rights reserved in this Article VII.
No amendment of this Certificate of Incorporation shall be effective to
amend, alter, repeal or change the effect of any of the provisions of Articles
V, VI, VII, VIII or IX hereof, or any of the provisions of Sections 2 or 3 of
Article IV hereof, unless such amendment shall have been approved by the
affirmative vote of at least sixty-six and two-thirds percent (66-2/3%) of the
voting power of the outstanding shares of Common Stock of the Corporation
entitled to vote thereon, which shall include the affirmative vote of at least
fifty-one percent (51%) of the voting power of the outstanding shares of Common
Stock entitled to vote thereon held by stockholders who are not Related Persons
(as defined in Article VI hereof); provided, however, that the foregoing voting
percentage requirements shall not apply to an amendment if such amendment shall
have been
<PAGE> 14
proposed and authorized by action of the Board of Directors of the Corporation
by the affirmative vote of a majority of the directors then in office.
ARTICLE VIII: LIABILITY OF DIRECTORS
No director of the Corporation shall be personally liable to the
Corporation or to any stockholder of the Corporation for monetary damages for
breach of fiduciary duty as a director, except, in addition to any and all other
prerequisites to such liability, for liability (1) for any breach of such
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) liability under Section 174 of the General
Corporation Law, or (iv) for any transaction from which such director derived an
improper personal benefit. Neither the amendment nor the repeal of this Article
VIII nor the adoption of any provision of this Certificate of Incorporation
inconsistent with this Article VIII shall reduce, eliminate, or adversely affect
the effect of this Article VIII in respect of any matter occurring, or any cause
of action, suit or claim that, but for this Article VIII, would accrue or arise,
prior to such amendment, repeal of adoption of an inconsistent provision.
ARTICLE IX: DELAWARE BUSINESS COMBINATION ACT
Section 203 of the General Corporation Law shall apply to any
business combination (as defined in Section 203(c)(3) of the General Corporation
Law, or in any successor thereto, however denominated) in which the Corporation
shall engage.
ARTICLE X: BY-LAWS
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors of the Corporation shall
have the power to make, alter, amend, repeal or rescind the By-laws of the
Corporation, subject to the right of the stockholders of the Corporation
entitled to vote with respect thereto to alter, amend, repeal or rescind any
By-law made by the Board of Directors.
ARTICLE XI: AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
This Amended and Restated Certificate of Incorporation supersedes the
existing Certificate of Incorporation of the Corporation in its entirety.
<PAGE> 1
Exhibit 4.2
BY-LAWS
of
NCS HEALTHCARE, INC.
Incorporated under the Laws of the State of Delaware
Adopted February 7, 1996
ARTICLE 1
OFFICES AND RECORDS
SECTION 1.1. DELAWARE OFFICE. The principal office of the
Corporation in the State of Delaware shall be located in the City of Wilmington,
County of New Castle, State of Delaware.
SECTION 1.2. OTHER OFFICES. The Corporation may have such
other offices, either within or without the State of Delaware, as the Board of
Directors may designate or as the business of the Corporation may from time to
time require.
SECTION 1.3. BOOKS AND RECORDS. The books and records of the
Corporation may be kept outside the State of Delaware at such place or places as
may from time to time be designated by the Board of Directors.
ARTICLE 2
STOCKHOLDERS
SECTION 2.1. ANNUAL MEETING. The annual meeting of the
stockholders of the Corporation shall be held on such date and at such place and
time as may be fixed by resolution of the Board of Directors.
SECTION 2.2. SPECIAL MEETING. Subject to the rights of the
holders of any series of stock having a preference over the common stock of the
Corporation as to dividends or upon liquidation ("Preferred Stock") with respect
to such series of Preferred Stock, special meetings of the stockholders may be
called only by the Chairman of the Board, or by the President, or by the Board
of Directors pursuant to a resolution adopted by a majority of the total number
of directors which the Corporation would have if there were no vacancies (the
"Whole Board").
SECTION 2.3. PLACE OF MEETING. The Board of Directors, the
Chairman of the Board or the President, as the case may be, may designate the
place of meeting for any annual meeting or for any special meeting of the
stockholders called by the Board of Directors, the Chairman of the Board or the
President. If no designation is so made, the place of meeting shall be the
principal office of the Corporation.
SECTION 2.4. NOTICE OF MEETING. Written or printed notice,
stating the place, day and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be delivered by the Corporation not less than
ten (10) days nor more than sixty (60) days before the date of the meeting,
either personally or by mail, to each stockholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with postage thereon prepaid, addressed to
the stockholder at his address as it appears on the stock transfer books of the
Corporation. Such further notice shall be given as may be required by law. Only
such business shall be conducted at a special meeting of stockholders as
<PAGE> 2
shall have been brought before the meeting pursuant to the Corporation's notice
of meeting. Meetings may be held without notice if all stockholders entitled to
vote are present, or if notice is waived by those not present in accordance with
Section 6.4 of these By-Laws. Any previously scheduled meeting of the
stockholders may be postponed, and (unless the Certificate of Incorporation
otherwise provides) any special meeting of the stockholders may be cancelled, by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
SECTION 2.5. QUORUM AND ADJOURNMENT. Except as otherwise
provided by law or by the Certificate of Incorporation, the holders of a
majority of the outstanding shares of the Corporation entitled to vote generally
in the election of directors (the "Voting Stock"), represented in person or by
proxy, shall constitute a quorum at a meeting of stockholders, except that when
specified business is to be voted on by a class or series of stock voting as a
class, the holders of a majority of the shares of such class or series shall
constitute a quorum of such class or series for the transaction of such
business. The Chairman of the meeting or a majority of the shares so represented
may adjourn the meeting from time to time, whether or not there is such a
quorum. No notice of the time and place of adjourned meetings need be given
except as required by law. The stockholders present at a duly called meeting at
which a quorum is present may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
SECTION 2.6. PROXIES. At all meetings of stockholders, a
stockholder may vote by proxy executed in writing (or in such manner prescribed
by the General Corporation Law of the State of Delaware (the "General
Corporation Law") by the stockholder, or by his duly authorized attorney in
fact.
SECTION 2.7. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(A) ANNUAL MEETINGS OF STOCKHOLDERS. (1) Nominations of
persons for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the Corporation's notice of
meeting, (b) by or at the direction of the Board of Directors, or (c) by any
stockholder of the Corporation who was a stockholder of record at the time of
giving of notice provided for in this By-Law, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this By-Law.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (A)(1) of this By-Law, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
60th day nor earlier than the close of business on the 90th day prior to the
first anniversary of the preceding year's annual meeting; PROVIDED, HOWEVER,
that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or re-election as a director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act
<PAGE> 3
of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder (including
such person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the Corporation's books, and of
such beneficial owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence
of paragraph (A)(2) of this By-Law to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this By-Law shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(B) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this By-Law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this By-Law. In the event
the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (A)(2) of this By-Law shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(C) GENERAL. (1) Only such persons who are nominated in
accordance with the procedures set forth in this By-Law shall be eligible to
serve as directors, and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this By-Law. Except as otherwise provided by law,
the Chairman of the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in
this By-Law and, if any proposed nomination or business is not in compliance
with this By-Law, to declare that such defective proposal or nomination shall be
disregarded.
(2) For purposes of this By-Law, "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the
<PAGE> 4
Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
By-Law, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this By-Law. Nothing in this By-Law shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
SECTION 2.8. PROCEDURE FOR ELECTION OF DIRECTORS; REQUIRED
VOTE. Election of directors at all meetings of the stockholders at which
directors are to be elected shall be by ballot, and, subject to the rights of
the holders of any series of Preferred Stock to elect directors under specified
circumstances, a plurality of the votes cast thereat shall elect directors.
Except as otherwise provided by law, the Certificate of Incorporation, or these
By-Laws, in all matters other than the election of directors, the affirmative
vote of a majority of the shares present in person or represented by proxy at
the meeting and entitled to vote on the matter shall be the act of the
stockholders.
SECTION 2.9. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE
POLLS. The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors may include individuals who serve the
Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives, to act at the meetings of stockholders and
make a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed to act or is able to act at a meeting of
stockholders, the Chairman of the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspectors shall have the duties prescribed by law.
The Chairman of the meeting shall fix and announce at the
meeting the date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting.
SECTION 2.10. NO STOCKHOLDER ACTION BY WRITTEN CONSENT.
Subject to the rights of the holders of any series of Preferred Stock with
respect to such series of Preferred Stock, any action required or permitted to
be taken by the stockholders of the Corporation must be effected at an annual or
special meeting of stockholders of the Corporation and may not be effected by
any consent in writing by such stockholders.
ARTICLE 3
BOARD OF DIRECTORS
SECTION 3.1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed under the direction of the Board of Directors. In
addition to the powers and authorities by these By-Laws expressly conferred upon
them, the Board of Directors may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these By-Laws required to be exercised or done by the
stockholders.
SECTION 3.2. NUMBER; TENURE AND QUALIFICATIONS. The number of
directors constituting the Whole Board shall be fixed at seven (7) as of the
date of the adoption of these By-Laws. Thereafter, subject to the rights of the
holders of any series of Preferred Stock to elect directors under specified
circumstances, and subject to such limitations as may be specified in these
<PAGE> 5
By-Laws or the Certificate of Incorporation or required by the General
Corporation Law, the number of directors constituting the Whole Board may be
fixed from time to time exclusively pursuant to a resolution adopted by a
majority of the Whole Board. Each director shall be a stockholder of the
Corporation. The directors, other than those who may be elected by the holders
of any series of Preferred Stock under specified circumstances, shall be
divided, with respect to the time for which they severally hold office, into
three classes, denominated Class I, Class II and Class III, respectively, which
classes shall be equal in number or as nearly equal as possible. In the event
the total number of directors is not evenly divisible by three (3), then an
additional director shall be assigned to Class I if there is one (1) additional
director to be assigned among the classes, and an additional director shall be
assigned to each of Classes I and II if there are two additional directors to be
assigned among the classes. The directors to be elected at each annual meeting
of stockholders shall be only the members of the class whose term of office then
expires. The term of office of the initial directors in each respective class
shall be as follows: (1) directors in Class I shall hold office until the annual
meeting of stockholders held in 1996; (2) directors in Class II shall hold
office until the annual meeting of stockholders held in 1997; and (3) directors
in Class III shall hold office until the annual meeting of stockholders held in
1998. At each annual meeting of stockholders, commencing with the 1996 annual
meeting, (i) directors elected to succeed those directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election, with each director to hold
office until his or her successor shall have been duly elected and qualified,
and (ii) if authorized by a resolution of the Board of Directors, directors may
be elected to fill any vacancy on the Board of Directors, regardless of how such
vacancy shall have been created.
SECTION 3.3. REGULAR MEETINGS. A regular meeting of the Board
of Directors shall be held without other notice than this By-Law immediately
after, and at the same place as, the Annual Meeting of Stockholders. The Board
of Directors may, by resolution, provide the time and place for the holding of
additional regular meetings without other notice than such resolution.
SECTION 3.4. SPECIAL MEETINGS. Special meetings of the Board
of Directors shall be called at the request of the Chairman of the Board, the
President or a majority of the Board of Directors then in office. The person or
persons authorized to call special meetings of the Board of Directors may fix
the place and time of the meetings.
SECTION 3.5. NOTICE. Notice of any special meeting of
directors shall be given to each director at his business or residence in
writing by hand delivery, first-class or overnight mail or courier service,
telegram or facsimile transmission, or orally by telephone. If mailed by
first-class mail, such notice shall be deemed adequately delivered when
deposited in the United States mails so addressed, with postage thereon prepaid,
at least five (5) days before such meeting. If by telegram, overnight mail or
courier service, such notice shall be deemed adequately delivered when the
telegram is delivered to the telegraph company or the notice is delivered to the
overnight mail or courier service company at least twenty-four (24) hours before
such meeting. If by facsimile transmission, such notice shall be deemed
adequately delivered when the notice is transmitted at least twelve (12) hours
before such meeting. If by telephone or by hand delivery, the notice shall be
given at least twelve (12) hours prior to the time set for the meeting. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice of such
meeting, except for amendments to these By-Laws, as provided under Article 11. A
meeting may be held at any time without notice if all the directors are present
or if those not present waive notice of the meeting in accordance with Section
6.4 of these By-Laws.
SECTION 3.6. ACTION BY CONSENT OF BOARD OF DIRECTORS. Any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if all
members of the Board or such committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board
<PAGE> 6
or such committee.
SECTION 3.7. CONFERENCE TELEPHONE MEETINGS. Members of the
Board of Directors, or any committee thereof, may participate in a meeting of
the Board of Directors or such committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
SECTION 3.8. QUORUM. Except as otherwise provided by the
Certificate of Incorporation or these By-Laws, a whole number of directors equal
to at least a majority of the Whole Board shall constitute a quorum for the
transaction of business, but if at any meeting of the Board of Directors there
shall be less than a quorum present, a majority of the directors present may
adjourn the meeting from time to time without further notice. Except as
otherwise provided by the Certificate of Incorporation or these By-Laws, the act
of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. The directors present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum.
SECTION 3.9. VACANCIES. Subject to applicable law and the
rights of the holders of any series of Preferred Stock with respect to such
series of Preferred Stock, and unless the Board of Directors otherwise
determines, vacancies resulting from death, resignation, retirement,
disqualification, removal from office or other cause, and newly created
directorships resulting from any increase in the authorized number of directors,
may be filled only by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors, and directors so
chosen shall hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which they have been
elected expires and until such director's successor shall have been duly elected
and qualified. Except as otherwise provided in the Certificate of Incorporation,
no decrease in the number of authorized directors constituting the Whole Board
shall shorten the term of any incumbent director.
SECTION 3.10. EXECUTIVE AND OTHER COMMITTEES. The Board of
Directors may, by resolution adopted by a majority of the Whole Board, designate
an Executive Committee to exercise, subject to applicable provisions of law, all
the powers of the Board in the management of the business and affairs of the
Corporation when the Board is not in session, including without limitation the
power to declare dividends, to authorize the issuance of the Corporation's
capital stock and to adopt a certificate of ownership and merger pursuant to
Section 253 of the General Corporation Law, and may, by resolution similarly
adopted, designate one or more other committees. The Executive Committee and
each such other committee shall consist of two or more directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, other than the Executive Committee
(the powers of which are expressly provided for herein), may to the extent
permitted by law exercise such powers and shall have such responsibilities as
shall be specified in the designating resolution. In the absence or
disqualification of any member of such committee or committees, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not constituting a quorum, may unanimously appoint another member of the
Board to act at the meeting in the place of any such absent or disqualified
member. Each committee shall keep written minutes of its proceedings and shall
report such proceedings to the Board when required.
A majority of any committee may determine its action and fix
the time and place of its meetings, unless the Board shall otherwise provide.
Notice of such meetings shall be given to each member of the committee in the
manner provided for in Section 3.5 of these By-Laws. The Board shall have power
at any time to fill vacancies in, to change the membership of, or to dissolve
any such committee. Nothing herein shall be deemed to prevent the Board from
appointing one or
<PAGE> 7
more committees consisting in whole or in part of persons who are not directors
of the Corporation; PROVIDED, HOWEVER, that no such committee shall have or may
exercise any authority of the Board.
SECTION 3.11. REMOVAL. Subject to the rights of the holders of
any series of Preferred Stock with respect to such series of Preferred Stock,
any director, or the entire Board of Directors, may be removed from office at
any time, but only for cause and only by the affirmative vote of the holders of
at least sixty-six and two-thirds percent (66_%) of the voting power of all of
the then-outstanding shares of Voting Stock, voting together as a single class.
SECTION 3.12. RECORDS. The Board of Directors shall cause to
be kept a record containing the minutes of the proceedings of the meetings of
the Board and of the stockholders, appropriate stock books and registers and
such books of records and accounts as may be necessary for the proper conduct of
the business of the Corporation.
SECTION 3.13. COMPENSATION. Directors, as such, shall not
receive any stated salary for their services, but by resolution a fixed sum and
expenses of attendance, if any, may be allowed for attendance at any meeting of
the Board of Directors or of any committee thereof. Nothing contained herein
shall be construed so as to preclude any director from serving the Corporation
in any other capacity, or from serving any of the Corporation's stockholders,
subsidiaries or affiliated corporations in any capacity, and receiving
compensation therefor.
ARTICLE 4
OFFICERS
SECTION 4.1. OFFICERS. The officers of the Corporation shall
be a Chairman of the Board of Directors, a President, a Secretary, a Treasurer,
and, if the Board of Directors shall so determine, or as may be deemed necessary
from time to time, a Vice Chairman of the Board, one or more Vice Presidents and
other officers and assistant officers. Any number of offices of the Corporation
may be held simultaneously by the same person.
SECTION 4.2. ELECTION OF OFFICERS. Each officer of the
Corporation shall be elected by the Board of Directors and shall hold office at
the pleasure of the Board of Directors until his successor has been elected or
until his earlier resignation or removal.
SECTION 4.3. RESIGNATION. Any officer may resign at any time
by giving written notice of his resignation to the Corporation. Any such
resignation shall take effect immediately upon receipt of such notice or at such
other time specified in such notice. Unless otherwise specified in such notice,
the acceptance of such resignation by the Corporation shall not be necessary to
make such resignation effective.
SECTION 4.4. REMOVAL. Any officer may be removed at any time,
either with or without cause, by action of the Board of Directors. Such removal
shall be without prejudice to the contractual rights, if any, of the person so
removed.
SECTION 4.5. VACANCIES. A newly created office and a vacancy
in any office because of death, resignation, or removal or any other cause shall
be filled by the Board of Directors.
SECTION 4.6. POWERS AND DUTIES. All officers, as between
themselves and the Corporation, shall have such authority and perform such
duties as are customarily incident to their respective offices, and as may be
specified from time to time by the Board of Directors, regardless of whether
such authority and duties are customarily incident to such office. In the
absence of any officer of the Corporation, or for any other reason the Board of
Directors may deem sufficient, the
<PAGE> 8
Board of Directors may delegate for the time being the powers or duties of such
officer, or any of them, to any other officer or to any Director. The Board of
Directors may from time to time delegate to any officer the authority to appoint
and remove subordinate officers and to prescribe their authority and duties.
SECTION 4.7. COMPENSATION. The compensation of the officers
shall be fixed from time to time by the Board of Directors or, if delegated by
the Board, by the President or the Chairman of the Board. Any such decision by
the President or Chairman of the Board shall be final unless expressly overruled
or modified by action of the Board of Directors, in which event such action of
the Board of Directors shall be conclusive of the matter. Nothing contained
herein shall preclude any officer from serving the Corporation in any other
capacity, including that of Director, or from serving any of its stockholders,
subsidiaries or affiliated corporations in any capacity, and receiving a proper
compensation therefor.
ARTICLE 5
STOCK CERTIFICATES AND TRANSFERS
SECTION 5.1. STOCK CERTIFICATES AND TRANSFERS. The interest of
each stockholder of the Corporation shall be evidenced by certificates for
shares of stock in such form as the appropriate officers of the Corporation may
from time to time prescribe. The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by his attorney, upon surrender for cancellation of certificates for at least
the same number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, with such proof of the authenticity
of the signature as the Corporation or its agents may reasonably require, and
together with payment of any applicable taxes.
The certificates for shares of stock shall be signed by or in
the name of the Corporation by the President, a Vice President or the Chairman
of the Board, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, or in such other manner as the Board of Directors may by
resolution prescribe, which resolution may permit any or all of the signatures
on such certificates to be in facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation with the same
effect as if he were such officer, transfer agent or registrar at the date of
issue.
SECTION 5.2. LOST, STOLEN OR DESTROYED CERTIFICATES. No
certificate for shares of stock in the Corporation shall be issued in place of
any certificate alleged to have been lost, destroyed or stolen, except on
production of such evidence of such loss, destruction or theft and on delivery
to the Corporation of a bond of indemnity in such amount, upon such terms and
secured by such surety, as the Board of Directors or any financial officer may
in its or his discretion require.
SECTION 5.3. PROTECTION OF CORPORATION. The Corporation shall
be entitled to recognize the exclusive right of a person registered on its books
as the owner of shares of stock to receive dividends, and to vote as such owner,
and to hold liable for calls and assessments a person registered on its books as
the owner of such shares, and shall not be bound to recognize any equitable or
other claim to or interest in such shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Delaware.
<PAGE> 9
ARTICLE 6
MISCELLANEOUS PROVISIONS
SECTION 6.1. FISCAL YEAR. The fiscal year of the Corporation
shall be such period as the Board of Directors may designate from time to time.
SECTION 6.2. DIVIDENDS. The Board of Directors may from time
to time declare, and the Corporation may pay, dividends on its outstanding
shares in the manner and upon the terms and conditions provided by law and the
Certificate of Incorporation.
SECTION 6.3. SEAL. The Corporation may adopt a corporate seal
which, if adopted, shall have inscribed thereon the name of the Corporation, the
year of its organization and the words "Corporate Seal, Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
SECTION 6.4. WAIVER OF NOTICE. Whenever any notice is required
to be given to any stockholder or director of the Corporation under the
provisions of the General Corporation Law, the Certificate of Incorporation or
these By-Laws, a waiver thereof in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice. Neither the business to be
transacted at, nor the purpose of, any annual or special meeting of the
stockholders or the Board of Directors or committee thereof need be specified in
any waiver of notice of such meeting.
SECTION 6.5. AUDITS. The accounts, books and records of the
Corporation shall be audited upon the conclusion of each fiscal year by an
independent certified public accountant selected by the Board of Directors, and
it shall be the duty of the Board of Directors to cause such audit to be
performed annually.
SECTION 6.6. RESIGNATIONS. Any director or any officer,
whether elected or appointed, may resign at any time by giving written notice of
such resignation to the Chairman of the Board, the President, or the Secretary,
and such resignation shall be deemed to be effective as of the close of business
on the date said notice is received by the Chairman of the Board, the President,
or the Secretary, or at such later time as is specified therein. No formal
action shall be required of the Board of Directors or the stockholders to make
any such resignation effective.
ARTICLE 7
INDEMNIFICATION AND INSURANCE
SECTION 7.1. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The
Corporation shall indemnify, to the fullest extent now or hereafter permitted by
law, any director or officer of the Corporation who was or is a party or is
threatened to be made a party to, or is involved in, any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereafter, a "proceeding"), by reason of the fact that such
person, or a person of whom he or she is the legal representative, is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
(including service with respect to employee benefit plans), whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, partner, trustee, employee or agent or in any other capacity while
serving as a director, officer, partner, trustee, employee or agent, against all
expense, liability and loss (including attorneys' fees, judgments, fines, excise
taxes or penalties and amounts paid or to be paid in settlement) actually and
reasonably incurred or suffered by such person in connection therewith. Such
indemnification shall continue as to a person who has ceased to be a director,
<PAGE> 10
officer, partner, trustee, employee or agent and shall inure to the benefit of
such person's heirs, executors and administrators; PROVIDED, HOWEVER, that,
except as provided in Section 7.4, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors.
SECTION 7.2. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The
Corporation may indemnify any employee or agent of the Corporation who is not a
director or officer of the Corporation to an extent greater than that required
by law only if and to the extent that the Board of Directors may, from time to
time in their discretion, so determine.
SECTION 7.3. ADVANCEMENT OF EXPENSES. Expenses, including
attorneys' fees, incurred by a director or officer of the Corporation in
defending any proceeding referred to in Section 7.1, shall be paid by the
Corporation, in advance of the final disposition of such proceeding, upon
receipt of an undertaking by or on behalf of the director or officer to repay
such amount if it shall ultimately be determined that such officer or director
is not entitled to be indemnified by the Corporation as authorized in this
Article 7, which undertaking may be secured or unsecured, in the discretion of
the Board of Directors.
SECTION 7.4. PROCEDURES AND PRESUMPTIONS UNDER THIS ARTICLE.
If a claim under Section 7.1 is not paid in full by the Corporation within
thirty (30) days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the General Corporation Law for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because the claimant has met the applicable standard of conduct set forth in the
General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
SECTION 7.5. INDEMNIFICATION PROVIDED IN THIS ARTICLE NOT
EXCLUSIVE. The indemnification and advancement of expenses provided under this
Article 7 shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
law, the Certificate of Incorporation, these By-Laws, any agreement, vote of
stockholders or of disinterested directors or otherwise, both as to action in
their official capacity and as to action in another capacity while holding such
office. Without limiting the generality or effect of the foregoing, the
Corporation may enter into one or more agreements with any person which provide
for indemnification greater or different than or in addition to the
indemnification provided for in this Article 7.
SECTION 7.6. ARTICLE DEEMED A CONTRACT. This Article 7 shall
be deemed to be a contract between the Corporation and each director or officer
of the Corporation, or individual who is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, who
serves in such capacity at any time while this Article 7 is in effect, and no
repeal, amendment or other modification of this Article 7 shall affect any
rights or obligations then existing with respect to any
<PAGE> 11
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.
SECTION 7.7. SAVINGS CLAUSE. If this Article 7 or any portion
thereof shall be invalidated or found unenforceable on any ground by any court
of competent jurisdiction, then the Corporation shall nevertheless indemnify
each director, officer, employee or agent of the Corporation against expenses
(including attorneys' fees), judgments, fines, excise taxes, penalties and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, to the fullest extent
permitted by any applicable portion of this Article 7 that shall not have been
invalidated or found unenforceable, or by any other applicable law.
SECTION 7.8. INSURANCE. The Corporation may maintain
insurance, at its expense, to protect itself and any director, officer, employee
or agent of the Corporation or individual serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under the General Corporation Law.
ARTICLE 8
CONTRACTS, PROXIES, ETC.
SECTION 8.1. CONTRACTS. Except as otherwise required by law,
the Certificate of Incorporation or these By-Laws, any contracts or other
instruments may be executed and delivered in the name and on the behalf of the
Corporation by such officer or officers of the Corporation as the Board of
Directors may from time to time direct. Such authority may be general or
confined to specific instances as the Board may determine. The Chairman of the
Board, the President or any Vice President may execute bonds, contracts, deeds,
leases and other instruments to be made or executed for or on behalf of the
Corporation. Subject to any restrictions imposed by the Board of Directors or
the Chairman of the Board, the President or any Vice President of the
Corporation may delegate contractual powers to others under his jurisdiction, it
being understood, however, that any such delegation of power shall not relieve
such officer of responsibility with respect to the exercise of such delegated
power.
SECTION 8.2. PROXIES. Unless otherwise provided by resolution
adopted by the Board of Directors, the Chairman of the Board, the President or
any Vice President may from time to time appoint an attorney or attorneys or
agent or agents of the Corporation, in the name and on behalf of the
Corporation, to cast the votes which the Corporation may be entitled to cast as
the holder of stock or other securities in any other corporation, any of whose
stock or other securities may be held by the Corporation, at meetings of the
holders of the stock or other securities of such other corporation, or to
consent in writing, in the name of the Corporation as such holder, to any action
by such other corporation, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed in the name and on behalf of the Corporation and under
its corporate seal (if any) or otherwise, all such written proxies or other
instruments as he may deem necessary or proper in the premises.
<PAGE> 12
ARTICLE 9
EMERGENCY BY-LAWS
The Board of Directors may adopt, either before or during an
emergency, as that term is defined by the General Corporation Law, any emergency
by-laws permitted by the General Corporation Law which shall be operative only
during such emergency. In the event the Board of Directors does not adopt any
such emergency by-laws, the special rules provided in the General Corporation
Law shall be applicable during an emergency as therein defined.
ARTICLE 10
SECTION HEADINGS
The article and section headings contained in these By-Laws
are included for purposes of reference only and shall not be construed to be a
part of or affect in any way the meaning or interpretation of these By-Laws.
ARTICLE 11
AMENDMENTS
Subject to the following sentence, these By-Laws may be
altered, amended, or repealed at any meeting of the Board of Directors by the
affirmative vote of a majority of the Whole Board, or at any meeting of the
stockholders by the affirmative vote of the holders of at least a majority of
the voting power of all of the then-outstanding shares of Voting Stock, voting
together as a single class, provided that, in either case, notice of the
proposed change was given in the notice of such meeting and, in the case of a
meeting of the Board of Directors, in a notice given not less than two days
prior to the meeting. Notwithstanding the foregoing sentence, Article 7 and
Sections 2.10, 3.2, 3.9 and 3.11 and this second sentence of this Article 11 of
these By-Laws may be altered, amended or repealed or otherwise modified, and any
other provision inconsistent therewith may be adopted, only at a meeting of the
stockholders by the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66_%) of the voting power of all of the then-outstanding
shares of Voting Stock, voting together as a single class.
<PAGE> 13
CERTIFICATE OF AMENDED
BY-LAWS OF
NCS HEALTHCARE, INC.
Kevin B. Shaw, President and Chief Executive Officer of NCS
Healthcare, Inc. (the "Company"), a Delaware corporation, does hereby certify
that the following amendment to the By-Laws of the Company was adopted by the
Board of Directors of the Company on November 11, 1996:
RESOLVED, that Section 2.5 and 2.8 of the By-Laws of the
Company adopted February 7, 1996, are hereby amended so that
henceforth they shall read in their entirety as follows, respectively:
SECTION 2.5 Quorum and Adjournment. Except as otherwise
provided by law or by the Certificate of Incorporation, the holders of
a majority of the voting power of the outstanding shares of the
Corporation entitled to vote generally in the election of directors
(the "Voting Stock"), represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders, except that when
specified business is to be voted on by a class or series of stock
voting as a class, the holders of a majority of the voting power of the
shares of such class or series shall constitute a quorum of such class
or series for the transaction of such business. The Chairman of the
meeting or a majority of the voting power of the shares so represented
may adjourn the meeting from time to time, whether or not there is such
a quorum. No notice of the time and place of adjourned meetings need be
given except as required by law. The stockholders present at a duly
called meeting at which a quorum is present may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
* * *
SECTION 2.8 Procedure for Election of Directors; Required
Vote. Election of directors at all meetings of the stockholders at
which directors are to be elected shall be by ballot, and, subject to
the rights of the holders of any series of Preferred Stock to elect
directors under specified circumstances, a plurality of the votes cast
thereat shall elect directors. Except as otherwise provided by law,
the Certificate of Incorporation, or these By-Laws, in all matters
other than the election of directors, the affirmative vote of a
majority of the voting power of the shares present in person or
represented by proxy at a meeting and entitled to vote on the matter
shall be the act of the stockholders.
In WITNESS WHEREOF, said Kevin B. Shaw, President and Chief Executive
Officer of NCS HealthCare, Inc., acting for and on behalf of said Company,
has hereunto subscribed his name this 3rd day of April, 1998.
/s/ Kevin B. Shaw
-----------------------------
Kevin B. Shaw, President and
Chief Executive Officer
<PAGE> 1
EXHIBIT 5.1
CALFEE, HALTER & GRISWOLD LLP
ATTORNEYS AT LAW
-------------------------------------------
1400 McDonald Investment Center
800 Superior Avenue Cleveland, Ohio 44114-2688
216/622-8200 Fax 216/241-0816
April 3, 1998
NCS HealthCare, Inc.
3201 Enterprise Parkway
Suite 220
Beachwood, Ohio 44122
We are acting as counsel for NCS HealthCare, Inc., a Delaware
corporation (the "Company"), with respect to the 883,528 shares of the Company's
Class A Common Stock, par value $.01 per share (the "Plan Shares"), to be
offered and sold from time to time pursuant to the Aberdeen Group, Inc. 1995
Amended and Restated Employee Stock Purchase and Option Plan, the NCS
HealthCare, Inc. 1996 Long Term Incentive Plan, the Amended and Restated Stock
Option Agreement by and between Aberdeen Group, Inc. and Richard L. Osborne,
dated as of December 7, 1995 and the Amended and Restated Stock Option Agreement
by and between Aberdeen Group, Inc. and Jeffrey R. Steinhilber, dated as of
December 7, 1995 (collectively, the "Plans"). As counsel for the Company, we
have assisted in the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission to effect the registration of the Plan Shares under the
Securities Act of 1933, as amended.
We have examined such documents, records and matters of law as
we have deemed necessary for purposes of this opinion, and based thereon we are
of the opinion that the Plan Shares to be offered and sold from time to time in
the manner contemplated by the Plans and the Registration Statement will be duly
authorized, validly issued, fully paid and nonassessable.
This opinion is limited to the General Corporation Law of the
State of Delaware, and we express no opinion as to the effect of any other law
on the opinions set forth herein.
This opinion is intended solely for your use in connection
with the filing of the Registration Statement with respect to the Plan Shares,
and may not be reproduced, filed publicly or relied upon by any other person for
any purpose without the express written consent of the undersigned.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement.
Respectfully submitted,
CALFEE, HALTER & GRISWOLD LLP
<PAGE> 1
EXHIBIT 15.1
April 2, 1998
The Board of Directors and Stockholders
NCS HealthCare, Inc. and Subsidiaries
We are aware of the incorporation by reference in the Registration Statement
(Form S-8 No. 333-____) of NCS HealthCare, Inc. for the registration of 883,528
shares of its Class A Common Stock of our reports dated October 28, 1997 and
January 28, 1998 relating to the unaudited condensed consolidated interim
financial statements of NCS HealthCare, Inc. and subsidiaries that are included
in its Forms 10-Q for the quarters ended September 30, 1997 and December 31,
1997.
Ernst & Young LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF COUNSEL
The consent of Calfee, Halter & Griswold LLP is contained in
their opinion filed as Exhibit 5.1 to this Registration Statement.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
Form S-8 of NCS HealthCare, Inc. pertaining to the registration of 883,528
shares of its Class A Common Stock of our report dated August 1, 1997, with
respect to the consolidated financial statements of NCS HealthCare, Inc. and
subsidiaries included 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
April 1, 1998
<PAGE> 1
EXHIBIT 24.1
NCS HEALTHCARE, INC.
CERTIFIED RESOLUTION
I, Jeffrey R. Steinhilber, Senior Vice President of NCS
HealthCare, Inc., a Delaware corporation (the "Company"), do hereby certify that
the following is a true and correct copy of the resolutions adopted by the Board
of Directors as of March 31, 1998, and that the same have not been changed and
remain in full force and effect.
RESOLVED FURTHER, that Jon H. Outcalt, Kevin B. Shaw, Gerald D.
Stethem, Thomas F. McKee and John J. Jenkins, be, and each of them
hereby is, appointed as the attorney of the Company with full power of
substitution and resubstitution for and in the name, place and stead of
the Company to sign, attest and file a Registration Statement on Form
S-8, or any other appropriate form that may be used from time to time,
with respect to the issue and/or sale of the Plan Shares, and any and
all amendments, post-effective amendments and exhibits to such
Registration Statement and any and all applications or other documents
to be filed with the Commission, the National Association of Securities
Dealers or any automated quotation system of a registered securities
association pertaining to the quotation thereon of the Plan Shares
covered by such Registration Statement or pertaining to such
registration and any and all applications or other documents to be
filed with any governmental or private agency or official relative to
the issuance of said Plan Shares, with full power and authority to do
and perform any and all acts and things whatsoever requisite and
necessary to be done in the premises, hereby ratifying and approving
the acts of such attorneys or any such substitute or substitutes and,
without implied limitation, including in the above authority to do the
foregoing on behalf and in the name of any duly authorized officer of
the Company; and that the Authorized Officers be, and each of them
hereby is, authorized and directed for and on behalf of the Company to
execute a Power of Attorney evidencing the foregoing appointment.
/s/ Jeffrey R. Steinhilber
-------------------------------
Jeffrey R. Steinhilber
Senior Vice President
Dated: April 3, 1998
