<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 19, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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
(ADDRESS OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
NCS HealthCare, Inc. 1998 Performance Plan
(FULL TITLE OF THE PLAN)
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 AND ADDRESS AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
- --------------------------------- ----------------- ---------------- ------------------------- -----------------------------
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 awards........ 1,200,000 (2) $23.0625 $27,675,000 $7,694
- --------------------------------- ----------------- ---------------- ------------------------- -----------------------------
(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 January 12,
1999.
(2) To be issued in connection with the NCS HealthCare, Inc. 1998 Performance Plan.
</TABLE>
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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, 1998;
2. The Company's Quarterly Report on Form 10-Q for the
period ended September 30, 1998; and
3. 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 that
indicates that all securities offered have been sold or that 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 or she 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 or she
acted in good faith and in a manner that he or she 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
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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 permitted by Delaware law, any Director or
officer 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, 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 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. 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 amount 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 indemnity 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.
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<PAGE> 4
ITEM 8. EXHIBITS.
See the Exhibit Index at Page E-1 of this Registration Statement.
ITEM 9. UNDERTAKINGS.
A. 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;
(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.
B. The undersigned Registrant hereby undertakes 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.
C. 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.
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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 January 19, 1999.
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 January 19, 1999.
/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 Officer)
Kevin B. Shaw
/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
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/s/ Richard L. Osborne Director
- ------------------------
Richard L. Osborne
/s/ Phyllis K. Wilson Director
- ------------------------
Phyllis K. Wilson
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NCS HEALTHCARE, INC.
EXHIBIT INDEX
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<CAPTION>
Exhibit No. Exhibit Description
----------- -------------------
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Company. (A)
4.2 By-Laws of the Company, as amended. (A)
4.3 Specimen certificate of the Company's Class A Common Stock. (B)
4.4 Specimen certificate of the Company's Class B Common Stock. (B)
4.5 Form of 5 3/4% Convertible Subordinated Debentures due 2004. (C)
4.6 Indenture, dated August 13, 1997, between the Company and National City Bank, as Trustee. (C)
4.7 NCS HealthCare, Inc. 1998 Performance Plan.
5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity of the shares of Class A Common
Stock.
15.1 Acknowledgment Letter of Ernst & Young LLP.
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.
24.2 Certified Resolution.
- ------------------
(A) Incorporated herein by reference to the appropriate exhibit to the Registrant's Registration Statement
on Form S-8 (Reg. No. 333-49417).
(B) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Registration Statement on Form S-1 (Reg. No. 33-80455).
(C) Incorporated herein by reference to the appropriate exhibit to the
Registrant's Registration Statement on Form S-3, as amended (Reg. No.
333-35551).
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E-1
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EXHIBIT 4.7
NCS HEALTHCARE, INC.
1998 PERFORMANCE PLAN
1. PURPOSE
The NCS HealthCare, Inc. 1998 Performance Plan, as the same may be
amended (the "Plan"), is designed to foster the long-term growth and performance
of the Company by: (a) enhancing the Company's ability to attract and retain
highly qualified employees and (b) motivating its Directors and employees to
serve and promote the long-term interests of the Company and its stockholders
through stock ownership and performance-based incentives. To achieve this
purpose, the Plan provides authority for the grant of Stock Options, Restricted
Stock, Stock Equivalent Units, Stock Appreciation Rights, Cash Awards and other
stock and performance-based incentives.
2. DEFINITIONS
(a) "AFFILIATE" means the same definition as under Rule 12b-2 under the
Exchange Act.
(b) "AWARD" means the grant of Stock Options, Restricted Stock, Stock
Equivalent Units, Stock Appreciation Rights, Cash Awards, and other stock and
performance-based incentives under this Plan.
(c) "AWARD AGREEMENT" means any agreement between the Company and a
Participant that sets forth terms, conditions, and restrictions applicable to an
Award.
(d) "BOARD OF DIRECTORS" means the Board of Directors of the Company.
(e) "CASH AWARD" is defined in Section 6(b)(iv).
(f) "CHANGE IN CONTROL" means, at any time after the date of the
adoption of this Plan, the occurrence of any one or more of the following:
(i) Any Person (other than any employee benefit plan or
employee stock ownership plan of the Company, or any Person organized,
appointed, or established by the Company, for or pursuant to the terms of any
such plan), alone or together with any of its Affiliates, becomes the Beneficial
Owner of 20% or more of the total outstanding voting power of the Company, as
reflected by the power to vote in connection with the election of Directors, or
commences or publicly announces an intent to commence a tender offer or exchange
offer the consummation of which would result in the Person becoming the
Beneficial Owner of 20% or more of the total outstanding voting power of the
Company as reflected by the power to vote in connection with the election of
Directors. For purposes of this Section 2(f)(i), the term "Person" means a
person as defined by Section 13(d)(3) of the Exchange Act, and the term
"Beneficial
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Owner" means a beneficial owner as defined by Rule 13d-3 or any successor rule
or regulation promulgated under the Exchange Act.
(ii) At any time during a period of 24 consecutive months,
individuals who were Directors at the beginning of the period no longer
constitute a majority of the members of the Board of Directors, unless the
election, or the nomination for election by the Company's stockholders, of each
Director who was not a Director at the beginning of the period is approved by at
least a majority of the Directors who are in office at the time of the election
or nomination and were either Directors at the beginning of the period or are
Continuing Directors.
(iii) A record date is established for determining
stockholders entitled to vote upon (A) a merger or consolidation of the Company
with another corporation (which is not an affiliate of the Company) in which the
Company is not the surviving or continuing corporation or in which all or part
of the outstanding capital stock of the Company is to be converted into or
exchanged for cash, securities, or other property, (B) a sale or other
disposition of all or substantially all of the assets of the Company, or (C) the
dissolution or liquidation (but not partial liquidation) of the Company.
(g) "CLASS B COMMON STOCK" means the shares of Class B Common Stock,
without par value, of the Company, including authorized and unissued shares of
Class B Common Stock.
(h) "CODE" means the Internal Revenue Code of 1986, or any law that
supersedes or replaces it, as amended from time to time.
(i) "COMMITTEE" means the Human Resources Committee of the Board of
Directors, or any other committee of the Board of Directors that the Board of
Directors or the Human Resources Committee authorizes to administer all or any
aspect of this Plan.
(j) "CLASS A COMMON STOCK" means the shares of Class A Common Stock,
without par value, of the Company, including authorized and unissued shares of
Class A Common Stock and shares of Class A Common Stock held in treasury.
(k) "COMPANY" means NCS HealthCare, Inc., a Delaware corporation, and
its direct and indirect subsidiaries.
(l) "CONTINUING DIRECTOR" means a Director who was a Director prior to
a Change in Control or was recommended or elected to succeed a Continuing
Director by a majority of the Continuing Directors then in office.
(m) "DIRECTOR" means a director of NCS HealthCare, Inc.
(n) "EXCHANGE ACT" means the Securities Exchange Act of 1934, and any
law that supersedes or replaces it, as amended from time to time.
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(o) "FAIR MARKET VALUE" of Class A Common Stock means the value of the
Class A Common Stock determined by the Committee, or pursuant to rules
established by the Committee on a basis consistent with regulations under the
Code.
(p) "INCENTIVE STOCK OPTION" means a Stock Option that meets the
requirements of Section 422 of the Code.
(q) "NOTICE OF AWARD" means any notice by the Committee to a
Participant that advises the Participant of the grant of an Award or sets forth
terms, conditions, and restrictions applicable to an Award.
(r) "PARTICIPANT" means any person to whom an Award has been granted
under this Plan.
(s) "PERFORMANCE OBJECTIVES" means the achievement of performance
objectives, the outcomes of which are substantially uncertain when set,
established pursuant to this Plan. Performance Objectives may be described in
terms of Company-wide objectives or objectives that are related to the
performance of the individual Participant or the subsidiary, division,
department or function within the Company in respect of which the Participant
performs services. Any Performance Objectives applicable to Awards intended to
qualify as "performance-based compensation" under Section 162(m) of the Code
(the "Performance-Based Exception") shall be limited to specified levels of or
increases in the Company's, or subsidiary's, or division's, or department's, or
function's return on equity, earnings per share, total earnings, earnings
growth, return on capital, operating measures (including, but not limited to,
operating margin and operating costs) return on assets, or increase in the Fair
Market Value of the Class A Common Stock. Except in the case of such an Award
intended to qualify as Performance-Based Compensation, if the Committee
determines that a change in the business, operations, corporate structure or
capital structure of the Company, or the manner in which it conducts its
business, or other events or circumstances render the Performance Objectives
unsuitable, the Committee may modify such Performance Objectives or the related
minimum acceptable level of achievement, in whole or in part, as the Committee
deems appropriate and equitable. Before any payment of Performance-Based
Compensation, the Committee shall certify that the Performance Objectives and
any other material terms were in fact satisfied.
The Committee shall have the discretion to adjust the determinations of
the degree of attainment of the pre-established Performance Objectives;
provided, however, that Awards which are designed to qualify for the
Performance-Based Exception, may not be adjusted upward (the Committee shall
retain the discretion to adjust such Awards downward).
In the event that applicable tax and/or securities laws change to
permit Committee discretion to alter the governing performance measures without
obtaining stockholder approval of such changes, the Committee shall have sole
discretion to make such changes without obtaining stockholder approval. In
addition, in the event that the Committee determines that it is
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advisable to grant Awards that will not qualify for the Performance-Based
Exception, the Committee may make such grants without satisfying the
requirements of Code Section 162(m).
(t) "PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a governmental authority.
(u) "RESTRICTED STOCK" means an Award of Common Stock that are subject
to restrictions or risk of forfeiture.
(v) "RULE 16B-3" means Rule 16b-3 under the Exchange Act, or any rule
that supersedes or replaces it, as amended from time to time.
(w) "STOCK APPRECIATION RIGHT" is defined in Section 6(b)(i).
(x) "STOCK AWARD" is defined in Section 6(b)(ii).
(y) "STOCK EQUIVALENT UNIT" means an Award that is valued by reference
to the value of the Class A Common Stock.
(z) "STOCK OPTION" is defined in Section 6(b)(iii).
3. ELIGIBILITY
All Directors and employees of the Company and its Affiliates are
eligible for the grant of Awards. The selection of any such persons to receive
Awards will be within the discretion of the Committee. More than one Award may
be granted to the same person.
Notwithstanding the foregoing, any individual who renounces in writing
any right that he or she may have to receive Awards under the Plan shall not be
eligible to receive any Awards hereunder.
4. CLASS A COMMON STOCK AVAILABLE FOR AWARDS; ADJUSTMENT
(a) Number of Shares of Commmon Stock. The aggregate amount of Class A
Common Stock that may be subject to Awards, including Stock Options, granted
under this Plan during the term of this Plan will be equal to One Million Two
Hundred Thousand (1,200,000) shares of Class A Common Stock, subject to any
adjustments made in accordance with the terms of this Section 4.
The assumption of obligations in respect of awards granted by an
organization acquired by the Company, or the grant of Awards under this Plan in
substitution for any such awards, will not reduce the amount of Class A Common
Stock available in any fiscal year for the grant of Awards under this Plan.
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Class A Common Stock subject to an Award that is forfeited, terminated,
or canceled without having been exercised (other than Class A Common Stock
subject to a Stock Option that is canceled upon the exercise of a related Stock
Appreciation Right) will again be available for grant under this Plan, without
reducing the amount of Class A Common Stock available in any fiscal year for
grant of Awards under this Plan. In addition, any Class A Common Stock which is
retained to satisfy a Participant's withholding tax obligations or which is
transferred to the Company by a Participant to satisfy such obligations or to
pay all or any portion of the exercise price of the Award in accordance with the
terms of the Plan, the Award Agreement or the Notice of Award, may be made
available for reoffering under the Plan to any Participant.
(b) No Fractional Shares of Class A Common Stock. No fractional shares
of Class A Common Stock will be issued, and the Committee will determine the
manner in which the value of fractional shares of Class A Common Stock will be
treated.
(c) Adjustment. In the event of any change in the Class A Common Stock
by reason of a merger, consolidation, reorganization, recapitalization, or
similar transaction, including any transaction described under Section 424(a) of
the Code, or in the event of a stock dividend, stock split, or distribution to
stockholders (other than normal cash dividends), the Committee will have
authority to adjust, in any manner that it deems equitable, the number and class
of shares of Class A Common Stock that may be issued under this Plan, the number
and class of shares of Class A Common Stock subject to outstanding Awards, the
exercise price applicable to outstanding Awards, and the Fair Market Value of
the Class A Common Stock and other value determinations applicable to
outstanding Awards, including as may be allowed or required under Section 424(a)
of the Code.
5. ADMINISTRATION
(a) Committee. This Plan will be administered by the Committee. The
Committee will, subject to the terms of this Plan, have the authority to: (i)
select the eligible persons who will receive Awards, (ii) grant Awards, (iii)
determine the number and types of Awards to be granted to eligible persons, (iv)
determine the terms, conditions, vesting periods, and restrictions applicable to
Awards, including timing and price, (v) adopt, alter, and repeal administrative
rules and practices governing this Plan, (vi) interpret the terms and provisions
of this Plan and any Awards granted under this Plan, including, where
applicable, determining the method of valuing any Award and certifying as to the
satisfaction of such Awards, (vii) prescribe the forms of any Notices of Award,
Award Agreements, or other instruments relating to Awards, and (viii) otherwise
supervise the administration of this Plan.
(b) Delegation. The Committee may delegate any of its authority to any
other person or persons that it deems appropriate.
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<PAGE> 6
(c) Decisions Final. All decisions by the Committee, and by any other
Person or Persons to whom the Committee has delegated authority, to the extent
permitted by law, will be final and binding on all Persons.
(d) No Liability. Neither the Committee nor any of its members shall be
liable for any act taken by the Committee pursuant to the Plan. No member of the
Committee shall be liable for the act of any other member.
6. AWARDS
(a) Grant of Awards. The Committee will determine the type or types of
Awards to be granted to each Participant and will set forth in the related
Notice of Award or Award Agreement and the terms, conditions, vesting periods,
and restrictions applicable to each Award. Awards may be granted singly or in
combination or tandem with other Awards. Awards may also be granted in
replacement of, or in substitution for, other awards granted by the Company,
whether or not granted under this Plan; without limiting the foregoing, if a
Participant pays all or part of the exercise price or taxes associated with an
Award by the transfer of Class A Common Stock or the surrender of all or part of
an Award (including the Award being exercised), the Committee may, in its
discretion, grant a new Award to replace the Class A Common Stock that was
transferred or the Award that was surrendered. The Company may assume
obligations in respect of awards granted by any Person acquired by the Company
or may grant Awards in replacement of, or in substitution for, any such awards.
(b) Types of Awards. Awards may include, but are not limited to, the
following:
(i) Stock Appreciation Right means a right to receive a
payment, in cash or Class A Common Stock, equal to the excess of (A) the Fair
Market Value, or other specified valuation, of a specified number of Class A
Common Stock on the date the right is exercised over (B) the Fair Market Value,
or other specified valuation, of such Class A Common Stock on the date the right
is granted, all as determined by the Committee. The right may be conditioned
upon the occurrence of certain events, such as a Change in Control of the
Company, or may be unconditional, as determined by the Committee.
(ii) Stock Award means an Award that is made in Class A Common
Stock, Restricted Stock, or Stock Equivalent Units or that is otherwise based
on, or valued in whole or in part by reference to, the Class A Common Stock. All
or part of any Stock Award may be subject to conditions, restrictions, and risks
of forfeiture, as and to the extent established by the Committee. Stock Awards
may be based on the Fair Market Value of the Class A Common Stock, or on other
specified values or methods of valuation, as determined by the Committee.
(iii) Stock Option means a right to purchase a specified
amount of Class A Common Stock, during a specified period, and at a specified
exercise price, all as determined by the Committee. A Stock Option may be an
Incentive Stock Option or a Stock Option that does not qualify as an Incentive
Stock Option. In addition to the terms, conditions, vesting periods,
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and restrictions established by the Committee, Incentive Stock Options must
comply with the requirements of Section 422 of the Code and regulations
promulgated thereunder, including the requirement that the aggregate Fair Market
Value of the Common Stock with respect to which the Incentive Stock Option first
becomes exercisable in any calendar year shall not exceed $100,000 (measured as
of the effective date of the award of an Incentive Stock Option). If any
Incentive Stock Option granted under the Plan would cause such dollar limits to
be exceeded, then the excess portion of such Incentive Stock Option shall become
exercisable in the next or succeeding calendar year in which its exercisability
would not violate the dollar limitations. The exercise price of a Stock Option
that does not qualify as an Incentive Stock Option may be more or less than the
Fair Market Value of the Common Stock on the date the Stock Option is granted.
(iv) Cash Award means an award denominated in cash. All or
part of any Cash Award may be subject to conditions established by the
Committee, including but not limited to future service with the Company or the
achievement of the Performance Objectives.
(c) Limits on Awards. The maximum aggregate amount of Class A Common
Stock (i) for which Stock Options may be granted, and (ii) with respect to which
Stock Appreciation Rights may be granted, to any particular employee during any
calendar year during the term of this Plan is 300,000 shares, subject to
adjustment in accordance with Section 4(c) hereof. The maximum aggregate amount
of cash which may be granted or awarded to any particular employee during any
calendar year during the term of this Plan is $500,000.
7. DEFERRAL OF PAYMENT
With the approval of the Committee, the delivery of the Class A Common
Stock, cash, or any combination thereof subject to an Award may be deferred,
either in the form of installments or a single future delivery. The Committee
may also permit selected Participants to defer the receipt of some or all of
their Awards, as well as other compensation, in accordance with procedures
established by the Committee to assure that the recognition of taxable income is
deferred under the Code. Deferred amounts may, to the extent permitted by the
Committee, be credited as cash or Stock Equivalent Units. The Committee may also
establish rules and procedures for the crediting of interest on deferred cash
payments and dividend equivalents on Stock Equivalent Units.
8. PAYMENT OF EXERCISE PRICE
The exercise price of a Stock Option (other than an Incentive Stock
Option) and any Stock Award for which the Committee has established an exercise
price may be paid in cash, by the transfer of Class A Common Stock, by the
surrender of all or part of an Award (including the Award being exercised), or
by a combination of these methods, as and to the extent permitted by the
Committee. The exercise price of an Incentive Stock Option may be paid in cash,
by the transfer of Class A Common Stock, or by a combination of these methods,
as and to the extent permitted by the Committee but may not be paid by the
surrender of all or part of an Award. The
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Committee may prescribe any other method of paying the exercise price that it
determines to be consistent with applicable law and the purpose of this Plan.
In the event Class A Common Stock that is Restricted Stock is used to
pay the exercise price of a Stock Award, that amount of the Class A Common Stock
issued upon the exercise of the Award equal to the amount of Class A Common
Stock that is Restricted Stock that has been used to pay the exercise price will
be subject to the same restrictions as the Restricted Stock.
9. TAXES ASSOCIATED WITH AWARD
Prior to the payment of an Award or upon the exercise or release
thereof, the Company may withhold, or require a Participant to remit to the
Company, an amount sufficient to pay any federal, state, and local taxes
associated with the Award. The Committee may, in its discretion and subject to
such rules as the Committee may adopt, permit a Participant to pay any or all
taxes associated with the Award (other than an Incentive Stock Option) in cash,
by the transfer of Class A Common Stock, by the surrender of all or part of an
Award (including the Award being exercised), or by a combination of these
methods. The Committee may permit a Participant to pay any or all taxes
associated with an Incentive Stock Option in cash, by the transfer of Class A
Common Stock, or by a combination of these methods or by any other method which
does not disqualify the option as an Incentive Stock Option under applicable
provisions of the Code.
10. TERMINATION OF EMPLOYMENT
If the employment of a Participant terminates for any reason, all
unexercised, deferred, and unpaid Awards may be exercisable or paid only in
accordance with rules established by the Committee or as specified in the
particular Award Agreement or Notice of Award. Such rules may provide, as the
Committee deems appropriate, for the expiration, continuation, or acceleration
of the vesting of all or part of the Awards.
11. TERMINATION OF AWARDS UNDER CERTAIN CONDITIONS
The Committee may cancel any unexpired, unpaid, or deferred Awards at
any time if the Participant is not in compliance with all applicable provisions
of this Plan or with any Notice of Award or Award Agreement or if the
Participant, without the prior written consent of the Company, engages in any of
the following activities:
(i) Renders services for an organization, or engages in a
business, that is, in the judgment of the Committee, in competition with the
Company.
(ii) Discloses to anyone outside of the Company, or uses for
any purpose other than the Company's business any confidential information or
material relating to the Company, whether acquired by the Participant during or
after employment with the Company, in a fashion or with a result that the
Committee, in its judgment, deems is or may be injurious to the best interests
of the Company.
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The Committee may, in its discretion and as a condition to the exercise
of an Award, require a Participant to acknowledge in writing that he or she is
in compliance with all applicable provisions of this Plan and of any Notice of
Award or Award Agreement and has not engaged in any activities referred to in
clauses (i) and (ii) above.
12. CHANGE IN CONTROL
In the event of a Change in Control of the Company, unless and to the
extent otherwise determined by the Board of Directors, (i) all Stock
Appreciation Rights and Stock Options then outstanding will become fully
exercisable as of the date of the Change in Control; (ii) all restrictions and
conditions applicable to Restricted Stock and other Stock Awards will be deemed
to have been satisfied as of the date of the Change in Control, and (iii) all
Cash Awards shall be released and/or deemed to have been fully earned as of the
date of the Change in Control. Any such determination by the Board of Directors
that is made after the occurrence of a Change in Control will not be effective
unless a majority of the Directors then in office are Continuing Directors and
the determination is approved by a majority of the Continuing Directors.
13. AMENDMENT, SUSPENSION, OR TERMINATION OF THIS PLAN; AMENDMENT OF
OUTSTANDING AWARDS
(a) Amendment, Suspension, or Termination of this Plan. The Board of
Directors may amend, suspend, or terminate this Plan at any time; provided,
however, that in no event, without the approval of the Company's stockholders,
shall any action of the Committee or the Board of Directors result in:
(i) Increasing, except as provided in Section 4(c) hereof, the
maximum amount of Class A Common Stock that may be subject to Awards granted
under the Plan; or
(ii) Making any change which would cause any option granted
under the Plan as an Incentive Stock Option not to qualify as an Incentive Stock
Option within the meaning of Section 422 of the Code; or
(iii) Making any change which would eliminate the exemption
provided by Rule 16b-3 for this Plan and for Awards granted under this Plan.
(b) Amendment of Outstanding Awards. The Committee may, in its
discretion, amend the terms of any Award, prospectively or retroactively, but no
such amendment may impair the rights of any Participant without his or her
consent. The Committee may, in whole or in part, waive any restrictions or
conditions applicable to, or accelerate the vesting of, any Award.
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14. AWARDS TO FOREIGN NATIONALS AND EMPLOYEES OUTSIDE THE UNITED STATES
To the extent that the Committee deems appropriate to comply with
foreign law or practice and to further the purpose of this Plan, the Committee
may, without amending this Plan, (i) establish special rules applicable to
Awards granted to Participants who are foreign nationals, are employed outside
the United States, or both, including rules that differ from those established
under this Plan, and (ii) grant Awards to such Participants in accordance with
those rules.
15. NONASSIGNABILITY
Unless otherwise determined by the Committee, (i) no Award granted
under the Plan may be transferred or assigned by the Participant to whom it is
granted other than by will, pursuant to the laws of descent and distribution,
and (ii) an Award granted under this Plan may be exercised, during the
Participant's lifetime, only by the Participant.
16. GOVERNING LAW
The interpretation, validity, and enforcement of this Plan will, to the
extent not otherwise governed by the Code or the securities laws of the United
States, be governed by the laws of the State of Delaware.
17. NO RIGHTS AS EMPLOYEES/STOCKHOLDERS
Nothing in the Plan or in any Award Agreement or Notice of Award shall
confer upon any Participant any right to continue in the employ of the Company
or an Affiliate, or to serve as a member of the Board of Directors or to be
entitled to receive any remuneration or benefits not set forth in the Plan or
such Award Agreement or Notice of Award, or to interfere with or limit either
the right of the Company or an Affiliate to terminate the employment of such
Participant at any time or the right of the stockholders of the Company to
remove him or her as a member of the Board of Directors with or without cause.
Nothing contained in the Plan or in any Award Agreement or Notice of Award shall
be construed as entitling any Participant to any rights of a stockholder as a
result of the grant of an Award until such time as Class A Common Stock is
actually issued to such Participant pursuant to the exercise of a Stock Option,
Stock Appreciation Right or other Stock Award.
18. EFFECTIVE AND TERMINATION DATES
(a) Effective Date. This Plan was approved by the Board of Directors on
October 23, 1998 and becomes effective upon adoption by the affirmative vote of
the holders of a majority of the voting power of the Company represented by the
Class A Common Stock and the Class B Common Stock, represented in person or by
proxy, at any annual or special meeting of stockholders at which a quorum is
present. The Plan shall be deemed to be adopted on the date of such stockholder
meeting.
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(b) Termination Date. This Plan will continue in effect until midnight
on November 1, 2008; provided, however, that Awards granted on or before that
date may extend beyond that date and restrictions and other terms and conditions
imposed on Restricted Stock or any other Award granted on or before that date
may extend beyond such date.
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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
January 19, 1999
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 1,200,000 shares of the
Company's Class A Common Stock, par value $.01 per share (the "Shares"), to be
offered and sold from time to time pursuant to the NCS HealthCare, Inc. 1998
Performance Plan (the "Plan"). 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 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 Shares to be offered and sold from time to time in the
manner contemplated by the Plan 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 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,
/s/ Calfee, Halter & Griswold LLP
CALFEE, HALTER & GRISWOLD LLP
<PAGE> 1
EXHIBIT 15.1
January 13, 1999
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 of NCS HealthCare, Inc. for the registration of 1,200,000 shares of its
Class A Common Stock for the NCS Healthcare, Inc. 1998 Performance Plan of our
report dated October 28, 1998 relating to the unaudited condensed consolidated
interim financial statements of NCS HealthCare, Inc. and subsidiaries that are
included in its Form 10-Q for the quarter ended September 30, 1998.
/s/ ERNST & YOUNG LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of NCS HealthCare, Inc. pertaining to the registration of 1,200,000 shares
of its Class A Common Stock for the NCS Healthcare, Inc. 1998 Performance Plan
of our report dated August 6, 1998, with respect to the consolidated financial
statements of NCS HealthCare, Inc. and subsidiaries included in its Annual
Report (Form 10-K/A) for the year ended June 30, 1998, filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
Cleveland, Ohio
January 13, 1999
<PAGE> 1
EXHIBIT 24.1
NCS HEALTHCARE, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that NCS HealthCare, Inc.
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, its
attorneys-in-fact and agents, each with full power of substitution and
resubstitution for it any and all capacities, to sign, attest and file this
Registration Statement with exhibits thereto, and any and all amendments,
post-effective amendments and exhibits to such Registration Statement with the
Securities and Exchange Commission, granting unto each of such attorneys-in-fact
and agents full power and authority to do and perform any and all acts and
things whatsoever requisite and necessary in connection with such matters and
hereby ratifying and approving 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.
IN WITNESS WHEREOF, this Power of Attorney has been signed at
Cleveland, Ohio on January 19, 1999.
NCS HEALTHCARE, INC.
By: /s/ Jon H. Outcalt
--------------------------
Jon H. Outcalt
<PAGE> 1
EXHIBIT 24.2
NCS HEALTHCARE, INC.
CERTIFIED RESOLUTION
I, Gerald D. Stethem, Chief Financial Officer of NCS
HealthCare, Inc., a Delaware corporation (the "Company"), do hereby certify that
the following is a true and correct copy of the resolution adopted by the Board
of Directors as of October 23, 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 Common Stock, 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 Common Stock 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 shares of Common Stock, 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/ Gerald D. Stethem
--------------------------
Gerald D. Stethem
Chief Financial Officer
Dated: January 19, 1999
