As filed with the Securities and
Exchange Commission on October 21, 1998 Registration No.
333-____
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
PRIORITY HEALTHCARE CORPORATION
(Exact name of registrant as specified in its charter)
INDIANA 35-1927379
(State or other jurisdiction
(I.R.S. Employer
of incorporation or organization)
Identification No.)
285 WEST CENTRAL PARKWAY 32714
ALTAMONTE SPRINGS, FLORIDA (Zip Code)
(Address of Principal Executive Offices)
PRIORITY HEALTHCARE CORPORATION
BROAD BASED STOCK OPTION PLAN
(Full title of the plan)
ROBERT L. MYERS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
285 WEST CENTRAL PARKWAY, ALTAMONTE SPRINGS, FLORIDA 32714
(Name and address of agent for service)
(407) 869-7001
(Telephone number, including area code, of agent for
service)
COPY TO:
JAMES A. ASCHLEMAN
BAKER & DANIELS
300 NORTH MERIDIAN STREET, SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO REGISTERED REGISTERED (1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE (2) PRICE (2)
<S> <C> <C> <C> <C>
Class B Common 400,000 $22.0938 (3) $8,837,520 (3) $2,607.06 (3)
Stock,
$0.01 par value
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933 (the "Securities
Act"), this Registration Statement also registers additional shares of
Class B Common Stock as may be offered or issued to prevent dilution
resulting from stock splits, stock dividends and similar transactions.
(2) It is impracticable to state the maximum offering price. The exercise
price of shares offered pursuant to non-qualified stock options granted
under the Broad Based Stock Option Plan (the "Plan") will be determined by
the Committee which administers the Plan on or before the date the options
are granted.
(3) Estimated solely for purposes of calculating the registration fee and
computed in accordance with Rule 457(c) and (h) under the Securities Act
using the average of the high and low sale prices of the Class B Common
Stock as reported by the NASDAQ National Market System on October 14, 1998,
which was $22.0938 per share.
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The Section 10(a) prospectuses for the Priority Healthcare
Corporation Broad Based Stock Option Plan are not required to be
filed with the Securities and Exchange Commission as part of this
Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's Annual Report on Form 10-K for the year ended
December 31, 1997 and the description of the Company's Common Stock
contained in the Company's Registration Statement on Form 8-A filed
pursuant to the Securities Exchange Act of 1934 (the "Exchange Act"),
including any amendments or reports filed for the purpose of updating
such description, are incorporated herein by reference. All other
reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year for which audited financial
statements are contained in the annual report described above are
incorporated herein by reference. All documents filed by the Company
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act
after the date hereof and prior to the termination of the offering of
the securities offered hereby shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of
such documents with the Commission. The Company will promptly
provide without charge to each person to whom a prospectus is
delivered, a copy of any or all information that has been
incorporated herein by reference (not including exhibits to the
information that is incorporated by reference unless such exhibits
are specifically incorporated by reference into such information),
upon the written or oral request of such person directed to the
Secretary of the Company at its principal offices, 285 West Central
Parkway, Altamonte Springs, Florida 32714, (407) 869-7001.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Indiana Business Corporation Law provides that a
corporation, unless limited by its Articles of Incorporation, is
required to indemnify its directors and officers against reasonable
expenses incurred in the successful defense of any proceeding to
which the director or officer was a party because of serving as a
director or officer of the corporation.
As permitted by the Indiana Business Corporation Law, the
Company's Restated Articles of Incorporation provide for
indemnification of directors, officers and employees of the Company
against any and all liability and reasonable expense that may be
incurred by them, arising out of any claim or action, civil,
criminal, administrative or investigative, in which they may become
involved by reason of being or having been a director, officer, or
employee. To be entitled to indemnification, those persons must have
been wholly successful in the claim or action or the Board of
Directors must have determined that such persons acted in good faith
in what they reasonably believed to be the best interests of the
Company (or at least not opposed to its best interests) and, in
addition, in any criminal action, had reasonable cause to believe
their conduct was lawful (or had no reasonable cause to believe that
their conduct was unlawful).
In addition, the Company has a directors' and officers'
liability and company reimbursement policy that insures against
certain liabilities, including liabilities under the Securities Act,
subject to applicable retentions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The list of Exhibits is incorporated herein by reference to the
Index to Exhibits.
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,
represent a fundamental change in the information set
forth in the registration statement;
(iii)To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
Provided, however, that paragraphs (1)(i) and (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 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 the 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.
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
section 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.
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 the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Altamonte
Springs, State of Florida, on September 22, 1998.
PRIORITY HEALTHCARE CORPORATION
By: /S/ ROBERT L. MYERS
Robert L. Myers
President and
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in
their respective capacities and on the respective dates indicated
opposite their names. Each person whose signature appears below
hereby authorizes each of William E. Bindley and Robert L. Myers,
each with full power of substitution, to execute in the name and on
behalf of such person any post-effective amendment to this
Registration Statement and to file the same, with exhibits thereto,
and other documents in connection therewith, making such changes in
this Registration Statement as the registrant deems appropriate, and
appoints each of William E. Bindley and Robert L. Myers, each with
full power of substitution, attorney-in-fact to sign any amendment
and any post-effective amendment to this Registration Statement and
to file the same, with exhibits thereto, and other documents in
connection therewith.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/S/ WILLIAM E. BINDLEY Chairman of the Board September 22, 1998
William E. Bindley
/S/ ROBERT L. MYERS President, Chief Executive Officer September 22, 1998
Robert L. Myers and Director (Principal Executive
Officer)
/S/ DONALD J. PERFETTO Vice President, Chief Financial September 22, 1998
Donald J. Perfetto Officer and Treasurer (Principal
Financial and Accounting Officer)
/S/ MICHAEL D. MCCORMICK Director September 22, 1998
Michael D. McCormick
/S/ THOMAS J. SALENTINE Director September 22, 1998
Thomas J. Salentine
/S/ RICHARD W. ROBERSON Director September 28, 1998
Richard W. Roberson
/S/ REBECCA M. SHANAHAN Director September 24, 1998
Rebecca M. Shanahan
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
DESCRIPTION OF EXHIBIT
Exhibit
NO.
<S> <C>
4.1 Restated Articles of Incorporation of the Registrant. (The copy of
this Exhibit filed as Exhibit 3-A to the Company's Registration
Statement on Form S-1 (Registration No. 333-34463) is incorporated
herein by reference.)
4.2 By-Laws of the Registrant, as amended to date. (The copy of this
Exhibit filed as Exhibit 3-B to the Company's Registration Statement
on Form S-1 (Registration No. 333-34463) is incorporated herein by
reference.)
4.3 Articles of Restatement of the Restated Articles of Incorporation of
the Registrant. (The copy of this Exhibit filed as Exhibit 3-C to
the Company's Registration Statement on Form S-1 (Registration No.
333-34463) is incorporated herein by reference.)
4.4 Priority Healthcare Corporation Broad Based Stock Option Plan.
5 Opinion of Baker & Daniels regarding legality of the securities
being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Baker & Daniels (included in the Baker & Daniels Opinion
filed as Exhibit 5).
24 Powers of Attorney (included on the Signature Page of the
Registration Statement).
</TABLE>
EXHIBIT 4.4
PRIORITY HEALTHCARE CORPORATION
BROAD BASED STOCK OPTION PLAN
1. PLAN PURPOSE. The purpose of the Plan is to promote the long-term
interests of the Company and its shareholders by providing a means for
attracting and retaining employees of the Company and its Affiliates.
2. DEFINITIONS. The following definitions are applicable to the Plan:
"Affiliate" -- means any "parent corporation" or "subsidiary
corporation" of the Company as such terms are defined in Section 424(e) and
(f), respectively, of the Code.
"Award" -- means the grant by the Committee of a Non-Qualified Stock
Option as provided in the Plan.
"Board" -- means the Board of Directors of the Company.
"Change in Control" -- means each of the events specified in the
following clauses (i) through (iii): (i) any third person, including a
"group" as defined in Section 13(d)(3) of the Exchange Act shall, after the
date of the adoption of the Plan by the Board, first become the beneficial
owner of shares of the Company with respect to which 25% or more of the
total number of votes for the election of the Board of Directors of the
Company may be cast, (ii) as a result of, or in connection with, any cash
tender offer, exchange offer, merger or other business combination, sale of
assets or contested election, or combination of the foregoing, the persons
who were directors of the Company shall cease to constitute a majority of
the Board of Directors of the Company or (iii) the stockholders of the
Company shall approve an agreement providing either for a transaction in
which the Company will cease to be an independent publicly owned entity or
for a sale or other disposition of all or substantially all the assets of
the Company; provided, however, that the occurrence of any of such events
shall not be deemed a Change in Control if, prior to such occurrence, a
resolution specifically approving such occurrence shall have been adopted
by at least a majority of the Board of Directors of the Company.
"Code" -- means the Internal Revenue Code of 1986, as amended.
"Committee" -- means the Committee referred to in Section 3 hereof.
"Company" -- means Priority Healthcare Corporation, an Indiana
corporation.
"Continuous Service" -- means the absence of any interruption or
termination of service as an employee of the Company or an Affiliate.
Service shall not be considered interrupted in the case of sick leave,
military leave or any other leave of absence approved by the Company or in
the case of any transfer between the Company and an Affiliate or any
successor to the Company.
"Employee" -- means any person who is employed by the Company or any
Affiliate.
"Exchange Act" -- means the Securities Exchange Act of 1934, as amended.
"Exercise Price" -- means the price per Share at which the Shares
subject to an Option may be purchased upon exercise of such Option.
"Market Value" -- means the last reported sale price on the date in
question (or, if there is no reported sale on such date, on the last
preceding date on which any reported sale occurred) of one Share on the
principal exchange on which the Shares are listed for trading, or if the
Shares are not listed for trading on any exchange, on the NASDAQ National
Market System or any similar system then in use, or, if the Shares are not
listed on the NASDAQ National Market System, the mean between the closing
high bid and low asked quotations of one Share on the date in question as
reported by NASDAQ or any similar system then in use, or, if no such
quotations are available, the fair market value on such date of one Share
as the Committee shall determine.
"Non-Qualified Stock Option" -- means an option to purchase Shares
granted by the Committee pursuant to the terms of the Plan, which option is
not intended to qualify under Section 422 of the Code.
"Option" -- means a Non-Qualified Stock Option.
"Participant" -- means any employee, other than an officer or director,
of the Company or any Affiliate who is selected by the Committee to receive
an Award.
"Plan" -- means this Broad Based Stock Option Plan of the Company.
"Reorganization" -- means the liquidation or dissolution of the Company
or any merger, consolidation or combination of the Company (other than a
merger, consolidation or combination in which the Company is the continuing
entity and which does not result in the outstanding Shares being converted
into or exchanged for different securities, cash or other property or any
combination thereof).
"Securities Act" -- means the Securities Act of 1933, as amended.
"Shares" -- means the Class B Common Stock, $.01 par value, of the
Company.
3. ADMINISTRATION. The Plan shall be administered by the Compensation
Committee of the Board (the "Committee"), which shall consist of two or
more members of the Board. The members of the Committee shall be appointed
by the Board. Except as limited by the express provisions of the Plan, the
Committee shall have sole and complete authority and discretion to (a)
select Participants and grant Awards; (b) determine the number of Shares to
be subject to types of Awards generally, as well as to individual Awards
granted under the Plan; (c) determine the terms and conditions upon which
Awards shall be granted under the Plan; (d) prescribe the form and terms of
instruments evidencing such grants; (e) establish procedures and
regulations for the administration of the Plan; (f) interpret the Plan; and
(g) make all determinations deemed necessary or advisable for the
administration of the Plan.
A majority of the Committee shall constitute a quorum, and the acts of
a majority of the members present at any meeting at which a quorum is
present, or acts approved in writing by all members of the Committee
without a meeting, shall be acts of the Committee. All determinations and
decisions made by the Committee pursuant to the provisions of the Plan
shall be final, conclusive, and binding on all persons, and shall be given
the maximum deference permitted by law.
4. PARTICIPANTS. The Committee may select from time to time
Participants in the Plan from those employees of the Company or its
Affiliates who, in the opinion of the Committee, have the capacity for
contributing in a substantial measure to the successful performance of the
Company or its Affiliates; provided, however, that the Committee shall not
select as a Participant any individual who is an officer or director of the
Company or its Affiliates at the time of such selection.
5. SHARES SUBJECT TO PLAN. Subject to adjustment by the operation of
Section 9 hereof, the maximum number of Shares with respect to which Awards
may be made under the Plan is 400,000 Shares. The number of Shares which
may be granted under the Plan to any Participant during any calendar year
of the Plan under Awards shall not exceed 40,000 Shares. The Shares with
respect to which Awards may be made under the Plan may either be authorized
and unissued shares or unissued shares heretofore or hereafter reacquired
and held as treasury shares. With respect to any Option which terminates
or is surrendered for cancellation, new Awards may be granted under the
Plan with respect to the number of Shares as to which such termination or
surrender has occurred.
6. GENERAL TERMS AND CONDITIONS OF OPTIONS. The Committee shall have
full and complete authority and discretion, except as expressly limited by
the Plan, to grant Options and to provide the terms and conditions (which
need not be identical among Participants) thereof. In particular, the
Committee shall prescribe the following terms and conditions: (i) the
Exercise Price, (ii) the number of Shares subject to, and the expiration
date of, any Option, (iii) the manner, time and rate (cumulative or
otherwise) of exercise of such Option, and (iv) the restrictions, if any,
to be placed upon such Option or upon Shares which may be issued upon
exercise of such Option. The Committee may, as a condition of granting any
Option, require that a Participant agree to surrender for cancellation one
or more Options previously granted to such Participant.
7. EXERCISE OF OPTIONS.
(a) Except as provided in Section 12, an Option granted under the Plan
shall be exercisable during the lifetime of the Participant to whom such
Option was granted only by such Participant, and except as provided in
Section 8, no Option may be exercised unless at the time the Participant
exercises the Option, the Participant has maintained Continuous Service
since the date of the grant of the Option.
(b) To exercise an Option under the Plan, the Participant must give
written notice to the Company specifying the number of Shares with respect
to which the Participant elects to exercise the Option together with full
payment of the Exercise Price. The date of exercise shall be the date on
which the notice is received by the Company. Payment may be made either
(i) in cash (including check, bank draft or money order), (ii) by tendering
Shares already owned by the Participant and having a Market Value on the
date of exercise equal to the Exercise Price, (iii) by requesting that the
Company withhold Shares issuable upon exercise of the Option having a
Market Value equal to the Exercise Price, or (iv) by any other means
determined by the Committee in its sole discretion.
8. TERMINATION OF OPTIONS. Unless otherwise specifically provided by
the Committee, Options shall terminate as provided in this Section.
(a) Unless sooner terminated under the provisions of this Section,
Options shall expire on the earlier of the date specified by the Committee
or the expiration of ten (10) years from the date of grant.
(b) If the Continuous Service of a Participant is terminated for cause,
or voluntarily by the Participant for any reason other than death,
disability or retirement, all rights under any Options granted to the
Participant shall terminate immediately upon the Participant's cessation of
Continuous Service, and the Participant shall (unless the Committee in its
sole discretion waives this requirement) repay to the Company within 10
days the amount of any gain realized by the Participant upon any exercise
within the 90-day period prior to the cessation of Continuous Service of
any Options granted to such Participant.
(c) If the Continuous Service of a Participant is terminated by reason
of retirement or terminated by the Company without cause, the Participant
may exercise outstanding Options to the extent that the Participant was
entitled to exercise the Options at the date of cessation of Continuous
Service, but only within the period of three (3) months immediately
succeeding the Participant's cessation of Continuous Service, and in no
event after the applicable expiration dates of the Options.
(d) In the event of the Participant's death or disability, the
Participant or the Participant's beneficiary, as the case may be, may
exercise outstanding Options to the extent that the Participant was
entitled to exercise the Options at the date of cessation of Continuous
Service, but only within the one-year period immediately succeeding the
Participant's cessation of Continuous Service by reason of death or
disability, and in no event after the applicable expiration date of the
Options.
(e) Notwithstanding the provisions of the foregoing paragraphs of this
Section 8, the Committee may, in its sole discretion, establish different
terms and conditions pertaining to the effect of the cessation of
Continuous Service, to the extent permitted by applicable federal and state
law.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. In the event of any
change in the outstanding Shares subsequent to the effective date of the
Plan by reason of any reorganization, recapitalization, stock split, stock
dividend, combination or exchange of shares, merger, consolidation or any
change in the corporate structure or Shares of the Company, the maximum
aggregate number and class of shares as to which Awards may be granted
under the Plan and the number and class of shares with respect to which
Awards theretofore have been granted under the Plan shall be appropriately
adjusted by the Committee, whose determination shall be conclusive.
10. EFFECT OF REORGANIZATION. Awards will be affected by a Reorganization
as follows:
(a) If the Reorganization is a dissolution or liquidation of the
Company then each outstanding Option shall terminate, but each
Participant to whom the Option was granted shall have the right,
immediately prior to such dissolution or liquidation to exercise his
Option in full and the Company shall notify each Participant of such
right within a reasonable period of time prior to any such dissolution
or liquidation.
(b) If the Reorganization is a merger or consolidation, other than a
Change in Control subject to Section 11 of this Agreement, upon the
effective date of such Reorganization each Optionee shall be entitled,
upon exercise of his Option in accordance with all of the terms and
conditions of the Plan, to receive in lieu of Shares, shares of such
stock or other securities or consideration as the holders of Shares
shall be entitled to receive pursuant to the terms of the
Reorganization.
The adjustments contained in this Section and the manner of application of
such provisions shall be determined solely by the Committee.
11. EFFECT OF CHANGE IN CONTROL. If a tender offer or exchange offer for
Shares (other than such an offer by the Company) is commenced, or if the
event specified in clause (iii) of the definition of a Change in Control
contained in Section 2 shall occur, unless the Committee shall have
otherwise provided in the instrument evidencing the grant of an Option, all
Options theretofore granted and not fully exercisable shall become
exercisable in full upon the happening of such event and shall remain so
exercisable in accordance with their terms; provided, however, that no
Option which has previously been exercised or otherwise terminated shall
become exercisable.
12. ASSIGNMENTS AND TRANSFERS. Except as otherwise determined by the
Committee, no Award nor any right or interest of a Participant under the
Plan in any instrument evidencing any Award under the Plan may be assigned,
encumbered or transferred except, in the event of the death of a
Participant, by will or the laws of descent and distribution.
13. EMPLOYEE RIGHTS UNDER THE PLAN. No employee or other person shall
have a right to be selected as a Participant nor, having been so selected,
to be selected again as a Participant and no employee or other person shall
have any claim or right to be granted an Award under the Plan or under any
other incentive or similar plan of the Company or any Affiliate. Neither
the Plan nor any action taken thereunder shall be construed as giving any
employee any right to be retained in the employ of the Company or any
Affiliate.
14. DELIVERY AND REGISTRATION OF STOCK. The Company's obligation to
deliver Shares with respect to an Award shall, if the Committee so
requests, be conditioned upon the receipt of a representation as to the
investment intention of the Participant to whom such Shares are to be
delivered, in such form as the Company shall determine to be necessary or
advisable to comply with the provisions of the Securities Act or any other
applicable federal or state securities legislation. It may be provided
that any representation requirement shall become inoperative upon a
registration of the Shares or other action eliminating the necessity of
such representation under the Securities Act or other securities
legislation. The Company shall not be required to deliver any Shares under
the Plan prior to (i) the admission of such shares to listing on any stock
exchange or system on which Shares may then be listed, and (ii) the
completion of such registration or other qualification of such Shares under
any state or federal law, rule or regulation, as the Company shall
determine to be necessary or advisable.
15. WITHHOLDING TAX. Where a Participant or other person is entitled to
receive Shares pursuant to the exercise of an Option pursuant to the Plan,
the Company shall, in lieu of requiring the Participant or such other
person to pay the Company the amount of any taxes which the Company is
required to withhold with respect to such Shares, retain a number of such
Shares sufficient to cover the amount required to be withheld.
16. LOANS.
(a) The Company may make loans to a Participant in connection with
the exercise of Options subject to the following terms and conditions
and such other terms and conditions not inconsistent with the Plan,
including the rate of interest, if any, as the Company shall impose from
time to time.
(b) No loan made under the Plan shall exceed the sum of (i) the
aggregate option price payable upon exercise of the Option in relation
to which the loan is made, plus (ii) the amount of the reasonably
estimated income taxes payable by the grantee. In no event may any such
loan exceed the Market Value of the related Shares at the time of the
loan.
(c) No loan shall have an initial term exceeding three years;
provided, that loans under the Plan shall be renewable at the discretion
of the Committee; and provided, further, that the indebtedness under
each loan shall become due and payable on a date no later than (i) one
year after termination of the Participant's employment due to death,
retirement or disability, or (ii) the day of termination of the
Participant's employment for any reason other than death, retirement or
disability.
(d) Loans under the Plan may be satisfied by the Participant, as
determined by the Committee, in cash or, with the consent of the
Committee, in whole or in part in Shares at Market Value on the date of
such payment.
(e) When a loan shall have been made, Shares having an aggregate
Market Value equal to the amount of the loan may, in the discretion of
the Committee, be required to be pledged by the Participant to the
Company as security for payment of the unpaid balance of the loan.
Portions of such Shares may, in the discretion of the Committee, be
released from time to time as it deems not to be needed as security.
(f) Every loan shall meet all applicable laws, regulations and rules
of the Federal Reserve Board and any other governmental agency having
jurisdiction.
17. TERMINATION, AMENDMENT AND MODIFICATION OF PLAN. The Board may at
any time terminate, and may at any time and from time to time and in any
respect amend or modify, the Plan; provided, however, that to the extent
necessary and desirable to comply with any applicable law or regulation,
including requirements of any stock exchange or NASDAQ system on which the
Shares are listed or quoted, shareholder approval of any Plan amendment
shall be obtained in such a manner and to such a degree as is required by
the applicable law or regulation; and provided, further, that no
termination, amendment or modification of the Plan shall in any manner
affect any Award theretofore granted pursuant to the Plan without the
consent of the Participant to whom the Award was granted or transferee of
the Award.
18. EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective
upon its adoption by the Board of Directors of the Company and shall
continue in effect for a term of ten years from the date of adoption unless
sooner terminated under Section 17 hereof.
ADOPTED BY THE BOARD OF DIRECTORS OF PRIORITY
HEALTHCARE CORPORATION AS OF SEPTEMBER 22,
1998
EXHIBIT 5
BAKER & DANIELS
300 NORTH MERIDIAN STREET
SUITE 2700
INDIANAPOLIS, INDIANA 46204
(317) 237-0300
October 21, 1998
Priority Healthcare Corporation
285 West Central Parkway
Altamonte Springs, Florida 32714
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Priority Healthcare Corporation, an
Indiana corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission (the "Commission") of
the Company's Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933 (the "Act"), registering the
offer and sale of up to 400,000 shares of the Company's Class B Common
Stock, $0.01 par value (the "Class B Shares"), pursuant to the Company's
Broad Based Stock Option Plan (the "Plan").
In so acting, we have examined and relied upon the originals, or
copies certified or otherwise identified to our satisfaction, of such
records, documents and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below.
Based on the foregoing, we are of the opinion that the Class B Shares
have been duly authorized and, when the Registration Statement shall have
become effective and the Class B Shares have been issued in accordance with
the Plan, the Class B Shares will be validly issued, fully paid and
nonassessable.
Our opinion expressed above is limited to the federal law of the
United States and the law of the State of Indiana.
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We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not thereby concede
that we are within the category of persons whose consent is required under
Section 7 of the Act or the Rules and Regulations of the Commission
thereunder.
Very truly yours,
/s/ BAKER & DANIELS
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 25, 1998, which appears
on page 37 of Priority Healthcare Corporation's Annual Report on Form 10-K
for the year ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Indianapolis, Indiana
October 19, 1998
