<PAGE> 1
Registration No. 333-
As filed with the Securities and Exchange Commission on November 13, 2000
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 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
incorporation or organization) identification No.)
3201 ENTERPRISE PARKWAY
SUITE 220
BEACHWOOD, OHIO 44122
(216) 514-3350
(Address of principal executive offices including zip code)
-------------------
NCS HEALTHCARE EMPLOYEE SAVINGS PLAN AND TRUST
(Full title of plan)
-------------------
Copy to:
JON H. OUTCALT DOUGLAS E. HAAS, ESQ.
CHAIRMAN OF THE BOARD BENESCH, FRIEDLANDER,
NCS HEALTHCARE, INC. COPLAN & ARONOFF LLP
3201 ENTERPRISE PARKWAY, SUITE 220 2300 BP TOWER
BEACHWOOD, OHIO 44122 200 PUBLIC SQUARE
(216) 514-3350 CLEVELAND, OHIO 44114-2378
(216) 363-4500
(Name and address including zip code; and telephone number,
including area code, of agent for service)
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------------------------------
Title of securities to be Proposed maximum offering Proposed maximum
registered Amount to be registered price per share (1) aggregate offering price(1) Amount of registration fee
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, 1,050,000 shares $00.455 $477,750 $126.13
par value $.01 per share
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated in accordance with Rule 457 under the Securities Act of
1933, solely for the purpose of calculating the registration fee, on the basis
of the average of the best bid and best ask prices of the Common Stock on
November 7, 2000 as reported on the OTC Bulletin Board.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by NCS HealthCare, Inc. with the
Securities and Exchange Commission are hereby incorporated or deemed to be
incorporated by reference in this registration statement:
1. NCS HealthCare's Annual Report on Form 10-K for the year ended
June 30, 2000 filed September 28, 2000 (file no.000-27602);
2. NCS HealthCare's Definitive Proxy Statement on Form DEF 14A
filed October 30, 2000 (file no. 000-27602);
3. The description of NCS HealthCare's common stock contained in
NCS HealthCare's registration statement on Form 8-A (file
no. 000-27602).
NCS HealthCare incorporates by reference in this registration statement
all documents it subsequently files under Sections 13(a), 13(c), 14 or 15(a) of
the Securities Exchange Act of 1934, after the date of this registration
statement and before the termination of the offering made hereby. Any statement
incorporated by reference in this registration statement shall be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to be 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
II-2
<PAGE> 3
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 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.
NCS HealthCare's by-laws, as amended, provide that NCS HealthCare 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 NCS HealthCare, or is or was serving at the
request of NCS HealthCare 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 NCS HealthCare's
by-laws provide for the advancement of expenses, including attorneys' fees,
incurred by a director or officer of NCS HealthCare 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 NCS HealthCare as authorized in the
by-laws. In addition, the by-laws permit NCS HealthCare to maintain insurance,
at its expense, to protect itself and any of its directors or officers or
individuals serving at the request of NCS HealthCare as a director, officer,
partner, trustee, employee or agent of another entity, against any expense,
liability or loss, whether or not NCS HealthCare 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, NCS HealthCare's certificate of
incorporation provides that a director of NCS HealthCare shall not be personally
liable to NCS HealthCare 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
II-3
<PAGE> 4
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. NCS HealthCare's 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.
NCS HealthCare has entered into indemnity agreements with its executive
officers and directors. The indemnity agreements provide that the indemnified
person 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 NCS HealthCare or of any subsidiary of NCS
HealthCare or of any other entity in which they are serving at the request of
NCS HealthCare. The indemnity agreements provide that NCS HealthCare indemnify
its directors and executive officers whether or not NCS HealthCare 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.
4.1 Amended and Restated Certificate of Incorporation of NCS
HealthCare (incorporated by reference to Exhibit 4.1 to NCS
HealthCare's registration statement on Form S-8 filed April 3,
1998, Registration No. 333-49417).
4.2 By-Laws of NCS HealthCare (incorporated by reference to
Exhibit 4.2 to NCS HealthCare's registration statement on Form
S-8 filed April 3, 1998, Registration No.333-49417).
4.3 Specimen certificate of NCS HealthCare's Class A common stock
(incorporated by reference to Exhibit 4.1 to NCS HealthCare's
registration statement on Form S-1 dated February 13, 1996,
Registration No. 33-80455).
4.4 Specimen certificate of NCS HealthCare's Class B common stock
(incorporated by reference to Exhibit 4.2 to NCS HealthCare's
registration statement on Form S-1, dated February 13, 1996,
Registration No. 33-80455).
II-4
<PAGE> 5
4.5 Form of 5 3/4% Convertible Subordinated Debentures due 2004
(incorporated by reference to Exhibit 4.11 to NCS HealthCare's
registration statement on Form S-3 filed September 12, 1997,
Registration No. 333-35551).
4.6 Indenture, dated August 13, 1997, between NCS HealthCare and
National City Bank, as Trustee (incorporated by reference to
Exhibit 4.10 to NCS HealthCare's registration statement on
Form S-3 filed September 12, 1997, Registration No.
333-35551).
4.7 NCS HealthCare Employee Savings Plan and Trust (incorporated
by reference to Exhibit 4.7 to NCS HealthCare's registration
statement on Form S-8 filed February 12, 1999, Registration
No.333-72243).
4.8 First Amendment to NCS HealthCare Employee Savings Plan and
Trust.
5.1 Opinion of Benesch, Friedlander, Coplan & Aronoff LLP, Counsel
to NCS HealthCare, regarding legality of the shares offered in
this registration statement.
23.1 Consent of Ernst & Young LLP, independent public accountants.
23.2 Consent of Benesch, Friedlander, Coplan & Aronoff LLP
(contained in their opinion filed as Exhibit 5.1 to this
registration statement).
24.1 Power of Attorney (included in Part II of this registration
statement).
NCS HealthCare will submit the NCS HealthCare Employee Savings Plan and
Trust and will submit any amendments to the plan to the Internal Revenue Service
in a timely manner and has made or will make all changes required by the
Internal Revenue Service in order to qualify the plan under Section 401 of the
Internal Revenue Code of 1986.
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, represent a fundamental change in
the information set forth in the Registration
Statement;
II-5
<PAGE> 6
(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 Registration Statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(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 bonafide 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 registrant's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(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, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-6
<PAGE> 7
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 the 13th day of
November, 2000.
NCS HEALTHCARE, INC.
(Registrant)
By:/s/Kevin B. Shaw
----------------------------------
Kevin B. Shaw
President and Chief Executive Officer
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jon H. Outcalt, Kevin B. Shaw, Gerald D.
Stethem, Alan E. Schabes and Douglas E. Haas, or any one or more of them, his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact, agent,
or their substitutes may lawfully 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 by the following persons on behalf of NCS
HealthCare, Inc. in the capacities and on the dates indicated.
Dated: November 13, 2000 /s/Jon H. Outcalt
--------------------------------------
Jon H. Outcalt
Chairman of the Board of Directors
Dated: November 13, 2000 /s/Kevin B. Shaw
--------------------------------------
Kevin B. Shaw
President, Chief Executive Officer and
Director
Dated: November 13, 2000 /s/Gerald D. Stethem
--------------------------------------
Gerald D. Stethem
Chief Financial Officer
Dated: November 13, 2000 /s/A. Malachi Mixon III
--------------------------------------
A. Malachi Mixon III
Director
Dated: November 13, 2000 /s/Boake A. Sells
--------------------------------------
Boake A. Sells
Director
Dated: November 13, 2000 /s/Richard L. Osborne
--------------------------------------
Richard L. Osborne
Director
<PAGE> 9
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT DESCRIPTION PAGE NO.
----------- ------------------- --------
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of NCS HealthCare
(incorporated by reference to Exhibit 4.1 to NCS HealthCare's
registration statement on Form S-8 filed April 3, 1998,
Registration No.333-49417).
4.2 By-Laws of NCS HealthCare (incorporated by reference to Exhibit 4.2 to
NCS HealthCare's registration statement on Form S-8 filed April 3,
1998, Registration No.333-49417).
4.3 Specimen certificate of NCS HealthCare's Class A common stock
(incorporated by reference to Exhibit 4.1 to NCS HealthCare's
registration statement on Form S-1 dated February 13, 1996,
Registration No. 33-80455).
4.4 Specimen certificate of NCS HealthCare's Class B common stock
(incorporated by reference to Exhibit 4.2 to NCS HealthCare's
registration statement on Form S-1, dated February 13, 1996,
Registration No. 33-80455).
4.5 Form of 5 3/4% Convertible Subordinated Debentures due 2004
(incorporated by reference to Exhibit 4.11 to NCS HealthCare's
registration statement on Form S-3 filed September 12, 1997,
Registration No. 333-35551).
4.6 Indenture, dated August 13,1997, between NCS HealthCare and National
City Bank, as Trustee (incorporated by reference to Exhibit 4.10 to NCS
HealthCare's registration statement on Form S-3 filed September 12,
1997, Registration No. 333-35551).
4.7 NCS HealthCare Employee Savings Plan and Trust (incorporated by
reference to Exhibit 4.7 to NCS HealthCare's registration statement on
Form S-8 filed February 12, 1999, Registration No. 333-72243).
4.8 First Amendment to NCS HealthCare Employee Savings Plan and Trust.
5.1 Opinion of Benesch, Friedlander, Coplan & Aronoff LLP, Counsel to NCS
HealthCare, regarding legality of the shares offered in this
registration statement.
23.1 Consent of Ernst & Young LLP, independent public accountants.
23.2 Consent of Benesch, Friedlander, Coplan & Aronoff LLP (contained in
their opinion filed as Exhibit 5.1 to this registration statement).
24.1 Power of Attorney (included in Part II of this registration statement).
</TABLE>
