<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VITALINK PHARMACY SERVICES, INC.
--------------------------------
(Exact name of registrant as specified in its charter)
Delaware 37-0903482
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1250 East Diehl Road, Suite 208
Naperville, Illinois 60563
- -------------------- -----
(Address of Principal Executive (Zip Code)
Office)
VITALINK PHARMACY SERVICES, INC.
1997 NON-EMPLOYEE DIRECTOR STOCK COMPENSATION PLAN
--------------------------------------------------
(Full title of the plan)
Robert W. Horner, III, Esq.
Secretary
One Ravinia Drive, Suite 1240
Atlanta, Georgia 30346
----------------------
(Name and address of agent for service)
(770) 677-7915
--------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered offering price per aggregate offering registration fee *
unit * price *
<S> <C> <C> <C> <C>
Common Stock, 20,000 shares $21.4063 $428,126 $126.30
per value of $.01 per
share
- --------------------------------------------------------------------------------------------------------------------
<FN>
* Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee. Estimate based on the average of the high and low share prices
reported on the New York Stock Exchange for January 20, 1998.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Except as set forth below with respect to Items 4,5,6,7,8 and 9 of Form
S-8, the contents of Registrant's Annual Report and Form 10-K (File No.
001-12729) and 10-K/A (File No. 001-12729) for fiscal year ended May 31, 1997
containing audited financial statements for the fiscal year ended May 31, 1997,
Forms 10-Q (File No.001-12729) for the fiscal quarters ended August 31, 1997 and
November 30, 1997, the Registration Statement on Form S-3 (Registration No.
333-38281) containing the Registrant's latest prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933, and the description of the Registrant's
Registration Statement on Form 8-A (Registration No. 000-19820) filed pursuant
to Section 12(b) of the Exchange Act of 1934 on January 29, 1992 (as amended
March 3, 1992) are incorporated by reference into this Registration Statement.
All documents subsequently filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), prior to the filing of a post-effective
amendment which indicated that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
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 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 General Corporation Law of the State of Delaware
(the "DGCL") provides, in summary, that directors and officers of Delaware
corporations such as the Registrant are entitled, under certain circumstances,
to be indemnified against all expenses and liabilities (including attorneys'
fees) incurred by them as a result of suits brought against them in their
capacity as a director or officer, if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, if they had
no reasonable cause to believe their conduct was
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unlawful; provided, that no indemnification may be made against expenses in
respect of any claim, issue or matter as to which they shall have been adjudged
to be liable to the corporation, unless and only to the extent that the court in
which such action or suit was brought shall determine upon application that
despite the adjudication of liability but in view of all the circumstances of
the case, they are fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper. Any such indemnification may be made by the
corporation only as authorized in each specific case upon a determination by the
stockholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct. Article VII of the
Registrant's By-Laws entitles officers, directors and controlling persons of the
Registrant to indemnification to the full extent permitted by Section 145 of
DGCL, as the same may be supplemented or amended from time to time.
Article VII of the Bylaws of Vitalink provides:
INDEMNIFICATION OF
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
Section 1. ACTION, OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding or investigation, whether civil, criminal or administrative,
and whether external or internal to the Corporation (other than a judicial
action or suit brought by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or trustee of the
Corporation, or that, being or having been such a director, officer, employee or
trustee, he is or was serving at the request of the Corporation as a director,
officer, employee, trustee or agent of another corporation, partnership, joint
venture, trust or other enterprise (all such persons being referred to hereafter
as an "Agent"), against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding, or any appeal therein, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding -- whether by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent -- shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, that he had reasonable cause to believe that his
conduct was unlawful.
Section 2. ACTION, BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed judicial action or suit
brought by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was an Agent (as defined above) against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense, settlement or appeal of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, except that no indemnification
shall be made in respect of any claim, issue or matter
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as to which such person shall have been adjudged to be liable for gross
negligence or misconduct in the performance of the duty of the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or other such court shall deem proper.
Section 3. DETERMINATION OF RIGHT OF INDEMNIFICATION. Any
indemnification under Section 1 or 2 (unless ordered by a court) shall be made
by the Corporation unless a determination is reasonably and promptly made (i) by
the Board by a majority vote or a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders, that such person acted in bad faith and in a manner that such
person did not believe to be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal proceeding, that such person
believed or had reasonable cause to believe that his conduct was unlawful.
Section 4. INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article, to the extent that an
Agent has been successful on the merits or otherwise, including the dismissal of
an action without admission of liability, in defense of any proceeding or in
defense of any claim, issue or matter therein, or on appeal from any such
proceeding, action, claim or matter, such Agent shall be indemnified against all
expenses incurred in connection therewith.
Section 5. ADVANCES OF EXPENSES. Except as limited by Section 6 of this
Article, expenses incurred in any action, suit, proceeding or investigation or
any appeal therein shall be paid by the Corporation in advance of the final
disposition of such matter, if the Agent shall undertake to repay such amount in
the event that it is ultimately determined, as provided herein, that such person
is not entitled to indemnification. Notwithstanding the foregoing, no advance
shall be made by the Corporation if a determination is reasonably and promptly
made by the Board of Directors by a majority vote of a quorum of disinterested
directors, or (if such a quorum is not obtainable or, even if obtainable, a
quorum of disinterested directors so directs) by independent legal counsel in a
written opinion, that, based upon the facts known to the Board or counsel at the
time such determination is made, such person acted in bad faith and in a manner
that such person did not believe to be in or not opposed to the best interests
of the Corporation, or, with respect to any criminal proceeding, that such
person believed or had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the Board or independent
legal counsel reasonably determines that such person deliberately breached his
duty to the Corporation or its shareholders.
Section 6. RIGHT OF AGENT TO INDEMNIFICATION UPON APPLICATION;
PROCEDURE UPON APPLICATION. Any indemnification under Sections 1, 2, and 4, or
advance under Section 5 of this Article, shall be made promptly, and in any
event within ninety days, upon the written request of the Agent, unless with
respect to applications under Sections 1, 2, and 5, a determination is
reasonably and promptly made by the Board of Directors by a majority vote of a
quorum of
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disinterested directors that such Agent acted in a manner set forth in
such Sections as to justify the Corporation's not indemnifying or making an
advance to the Agent. In the event no quorum of disinterested directors is
obtainable, the Board of Directors shall promptly direct that independent legal
counsel shall decide whether the Agent acted in the manner set forth in such
Sections as to justify the Corporation's not indemnifying or making an advance
to the Agent. The right to indemnification or advances as granted by this
Article shall be enforceable by the Agent in any court of competent
jurisdiction, if the Board or independent legal counsel denies the claim, in
whole or in part, or if no disposition of such claim is made within ninety days.
The Agent's expenses incurred in connection with successfully establishing his
right to indemnification, in whole or in part, in any such proceeding shall also
be indemnified by the Corporation.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in this
Article is held by a court of competent jurisdiction to be unavailable to an
indemnitee in whole or in part, the Corporation shall, in such an event, after
taking into account, among other things, contributions by other directors and
officers of the Corporation pursuant to indemnification agreements or otherwise,
and in the absence of personal enrichment, acts of intentional fraud or
dishonesty or criminal conduct on the part of the agent, contribute to the
payment of Agent's losses to the extent that, after other contributions are
taken into account, such losses exceed: (i) in the case of a director of the
Corporation or any of its subsidiaries who is not an officer of the Corporation
or any of such subsidiaries, the amount of fees paid to him for serving as a
director during the 12 months preceding the commencement of the suit, proceeding
or investigation; or (ii) in the case of a director of the Corporation or any of
its subsidiaries who is also an officer of the Corporation or any of such
subsidiaries, the amount set forth in clause (i) plus 5% of the aggregate cash
compensation paid to said director for service in such office(s) during the 12
months preceding the commencement of the suit, proceeding or investigation; or
(iii) in the case of an officer of the Corporation or any of the subsidiaries,
5% of the aggregate cash compensation paid to such officer for service in such
office(s) during the 12 months preceding the commencement of such suit,
proceeding or investigation.
Section 8. OTHER RIGHTS AND REMEDIES. The indemnification provided by
this Article shall not be deemed exclusive of, and shall not affect, any other
rights to which an Agent seeking indemnification may be entitled under any
Bylaws, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be an Agent and shall inure to the benefit of the heirs, executors and
administrators of such a person. All rights to indemnification under this
Article shall be deemed to be provided by a contract between the Corporation and
the Agent who serves in such capacity at any time while these bylaws and other
relevant provisions of the general corporation law and other modification
thereof shall not affect any rights or obligations then existing.
Section 9. INSURANCE. Upon resolution passed by the Board, the
Corporation may purchase and maintain insurance on behalf of any person who is
or was an Agent against any liability asserted against him and incurred by him
in any such capacity, or arising out of his
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status as such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of this Article. The Corporation
may create a trust fund, grant a security interest or use other means
(including, without limitation, a letter of credit) to ensure the payment of
such sums as may become necessary to effect indemnification as provided herein.
Section 10. CONSTITUENT CORPORATIONS. For the purposes of this Article,
references to "the Corporation" include all constituent corporations absorbed in
a consolidation or merger as well as the resulting or surviving corporation, so
that any person who is or was a director, officer, employees, or trustees of
such a constituent corporation or who, being or having been such a director,
officer, employee or trustee, is or was serving at the request of such
constituent corporation as a director, officer, employee, trustee of another
corporation, partnership, joint venture, trust or other enterprise shall stand
in the same position under the provisions of this Article with respect to the
resulting or surviving corporation as he would if he had served the resulting or
surviving corporation in the same capacity.
Section 11. OTHER ENTERPRISES, FINES, AND SERVING AT CORPORATION'S
REQUEST. For purposes of this Article, references to "other enterprises" in
Sections 1 and 7 shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service by Agent as director, officer, employee, trustee or
agent of the Corporation which imposes duties on, or involves services by, such
Agent with respect to any employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interests of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Article.
Section 12. SAVINGS CLAUSE. If this Article or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Agent as to expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suit, appeal, proceeding or investigation, whether civil,
criminal or administrative, and whether internal or external, including a grand
jury proceeding and an action or suit brought by or in the right of the
Corporation, to the full extent permitted by any applicable portion of this
Article that shall not have been invalidated, or by any other applicable law.
The Registrant has entered into separate indemnification agreements
with directors and officers of the Registrant, pursuant to which the Registrant
will indemnify such directors and officers to the fullest extent permitted by
Delaware law, as the same may be amended from time to time.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed 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.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Vitalink Pharmacy Services, Inc. 1997 Non-Employee Director Stock
Compensation Plan.
+4.2 Restated Certificate of Incorporation of the Registrant (filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form S-1
(Reg. No. 033-43261) and incorporated herein by reference).
+4.3 Amended and Restated Bylaws of the Registrant (filed as Exhibit 4.3 to
the Registrant's Registration Statement on Form S-8 (Reg. No.
333-19097) and incorporated herein by reference).
+4.4 Form of Certificate for the Registrant's Common Stock, par value $.01
per share (filed as Exhibit 4.1 of the Registrant's Registration
Statement on Form S-1 (Reg. No. 033-43261) and incorporated herein by
reference).
5.1 Opinion of Robert W. Horner III, Esq. regarding legality of share to be
offered.
23.1 Consent of Robert W. Horner III (included in Exhibit 5.1).
23.2 Consent of Independent Public Accountants.
24.1 Power of Attorney of Donna L. DeNardo.
24.2 Power of Attorney of Scott T. Macomber.
24.3 Power of Attorney of Stewart Bainum, Jr.
24.4 Power of Attorney of Joseph R. Buckley.
24.5 Power of Attorney of James A. MacCutcheon
24.6 Power of Attorney of James H. Rempe
+ Previously filed
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ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering.
------------------
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 (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 with or furnished to the Commission 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 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) Filings incorporating subsequent Exchange Act documents by
reference.
----------------------------------------------------------
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
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pursuant to section 13(a) or 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) Request for acceleration of effective date of filing of
registration statement on Form S-8.
-------------------------------------------------------
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.
SIGNATURES
The Registrant
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 Atlanta, State of Georgia, on this 22nd day of
January, 1998.
VITALINK PHARMACY SERVICES, INC.
By: /s/Robert W. Horner III
---------------------------------
Robert W. Horner III
Senior Vice President, Secretary and
General Counsel
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on this 22nd day of January 1998.
Signature Title
--------- -----
*
President and Chief Operating Officer
- ----------------------------
Donna L. DeNardo
* Senior Vice President, Chief Financial Officer
- ---------------------------- and Treasurer
Scott T. Macomber
*
Director
- ----------------------------
Stewart Bainum, Jr.
*
Director
- ----------------------------
Joseph R. Buckley
*
Director
- ----------------------------
James A. MacCutcheon
*
Director
- ----------------------------
James H. Rempe
* By: /s/ Robert W. Horner III
--------------------
Robert W. Horner III
Attorney-in-Fact
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EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
4.1 Vitalink Pharmacy Services, Inc. 1997 Non-Employee Director Stock
Compensation Plan.
+4.2 Restated Certificate of Incorporation of the Registrant (filed as
Exhibit 3.1 to the Registrant's Registration Statement on Form S-1
(Reg. No. 033-43261) and incorporated herein by reference).
+4.3 Amended and Restated Bylaws of the Registrant (filed as Exhibit 4.3 to
the Registrant's Registration Statement on Form S-8 (Reg. No.
333-19097) and incorporated herein by reference).
+4.4 Form of Certificate for the Registrant's Common Stock, par value $.01
per share (filed as Exhibit 4.1 of the Registrant's Registration
Statement on Form S-1 (Reg. No. 033-43261) and incorporated herein by
reference).
5.1 Opinion of Robert W. Horner III, Esq. regarding legality of share to be
offered.
23.1 Consent of Robert W. Horner III (included in Exhibit 5.1).
23.2 Consent of Independent Public Accountants.
24.1 Power of Attorney of Donna L. DeNardo.
24.2 Power of Attorney of Scott T. Macomber.
24.3 Power of Attorney of Stewart Bainum, Jr.
24.4 Power of Attorney of Joseph R. Buckley.
24.5 Power of Attorney of James A. MacCutcheon.
24.6 Power of Attorney of James H. Rempe.
+ Previously filed.
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Exhibit 4.1
VITALINK PHARMACY SERVICES, INC.
1997 NON-EMPLOYEE DIRECTOR
STOCK COMPENSATION PLAN
Vitalink Pharmacy Services, Inc. has adopted and established a stock
compensation plan for Non-Employee Directors in accordance with the following
terms and conditions.
SECTION ONE
DESIGNATION AND PURPOSE OF THE PLAN
A. Designation. This plan is designated the "Vitalink Pharmacy Services, Inc.
Non-Employee Director Stock Compensation Plan."
B. Purpose. The purpose of this Plan is to implement a stock-based component of
Non-Employee Director compensation so as to encourage stock ownership by
Non-Employee Directors and to further align the interests of Non-Employee
Directors and stockholders.
SECTION TWO
DEFINITIONS
As used in the Plan, the following terms mean:
A. "Award" means restricted stock granted hereunder.
B. "Board" means the Board of Directors of the Company.
C. "Company" means Vitalink Pharmacy Services, Inc.
D. "Custodial Account" means the account described in Section 7(A)
herein.
E. "Disability" means a permanent and total disability within the
meaning of Section 22(e)(3) of the Internal Revenue Code of 1986 as amended.
F. "Non-Employee Director" means a member of the Board of the Company
who is not an employee of the Company or any of its subsidiaries.
G. "Participant" means any Non-Employee Director who is granted an
Award as provided in this Plan.
H. "Plan" means this Non-Employee Director Stock Compensation Plan.
I. "Retirement" means termination of service as a Director for either
of the following reasons: (i) after attaining age 65 years of age or (ii)
failure to be re-elected as a Director by the shareholders of the Company as the
Annual Meeting of Stockholders.
J. "Stock" means the common stock of Vitalink Pharmacy Services, Inc.
SECTION THREE
EFFECTIVE DATE, DURATION AND BOARD APPROVAL
The Plan shall be effective upon the approval of the Plan by a majority
of the shareholders of the Company.
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SECTION FOUR
ADMINISTRATION OF THIS PLAN
This Plan shall be administered by the Board. The Board shall have all
the powers vested in it by the terms of this Plan, such powers to include
authority (within the limitation described herein) to prescribe the form of the
agreement embodying Awards made under this Plan. Subject to the provisions of
this Plan, the Board shall have the power to construe this Plan, to determine
all questions arising thereunder, and to adopt and amend such rules and
regulations for the administration of this Plan as it may deem desirable. Any
decision of the Board regarding the administration of this Plan, as described
herein, shall be final and conclusive. The Board may act only by a majority of
its members in office, except that the members thereof may authorize any one or
more of their number or the Secretary or any other officer of the Company to
execute and deliver documents on behalf of the Board.
SECTION FIVE
GRANT OF AWARDS AND LIMITATION OF
NUMBER OF SHARES SUBJECT TO AWARD
A. Compensation in Common Stock. Subject to the Board Approval and
effective immediately upon such approval, each Non-Employee Director shall be
granted 450 shares of restricted stock. Upon election as a Non-Employee Director
at Annual Meeting of Stockholders, each Non-Employee Director shall, in addition
to any Board retainer and attendance fees, be granted 450 of Restricted Stock on
the date of each annual meeting.
B. Total Number of Shares. Subject to any adjustment pursuant to
Section 8, the total number of shares of Stock which may awarded under this Plan
is 20,000 shares. The maximum number of shares authorized may be increased from
time to time by approval of the Board and, if required pursuant to Rule 16-3 of
the Securities and Exchange Commission or its successor or the applicable rules
of any stock exchange, or the stockholders of the Company.
To the extent that an Award lapses or the rights of the Participant to
whom it was granted terminate, expire or are canceled for any other reason, in
whole or in part, shares of Stock (or remaining shares) subject to such Award
shall again be available for the grant of an Award under the Plan. Shares
delivered by the Company under the Plan may be authorized and unissued Stock,
Stock held in the treasury of the Company or Stock purchased on the open market
(including private purchases) in accordance with applicable securities laws.
C. Insufficient Number of Shares. In the event that the number of
shares of Stock available for future Awards under this Plan is insufficient to
make all Awards required to be made on any date, then all Participants entitled
to an Award on such date shall share ratably in the number of shares of Stock
which may be included in Awards granted to Participants under this Plan.
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SECTION SIX
ELIGIBILITY
Each Non-Employee Director shall be eligible to receive an Award in
accordance with Section Five. Each Award granted under this Plan shall be
evidenced by an agreement in such form as the Board shall prescribe from time to
time in accordance with this Plan and shall comply with the terms and conditions
set forth in Section 7. Such an agreement shall incorporate the provisions of
this Plan by reference.
SECTION SEVEN
RESTRICTIONS ON SHARES
A. Custodial Account. The shares shall be held by the Company in a
Custodial Account on behalf of the Participant until such time as the shares
have vested pursuant to the terms of Section 7(B) of this Plan.
B. Vesting. The shares held by the Company shall remain in the
Custodial Account until vesting which shall occur. All such shares granted shall
vest following the expiration of one year from the date of the Award.
Upon vesting, the shares shall be distributed to the Participant within
a reasonable period of time not to exceed ninety (90) days from the date of
vesting and the Custodial Account shall be terminated as to such shares.
C. Forfeiture. Subject to Section 7(E) below, if the Participant ceases
to be a Non-Employee Director for any reason prior to vesting, the Participant
shall forfeit the shares, and the Custodial Account shall be terminated as to
such shares. Ownership of the forfeited shares shall revert back to the Company.
D. No Assignment. The shares granted under the Plan, while held by the
Company pursuant to the Custodial Account, shall not be transferred, assigned,
pledged, or hypothecated in any way (whether by operation of law or otherwise),
and shall not be subject to execution, attachment, or similar process. Upon any
attempt to so transfer, assign, pledge, hypothecate, or otherwise dispose of the
shares, or of any right or privilege conferred thereby, contrary to the
provisions hereof, or upon the levy of any attachment or similar process upon
such rights and privileges, the Participant shall forfeit the shares and
ownership of the forfeited shares shall revert back to the Company.
E. Death, Disability and Board Retirement. A Participant who ceases to
serve on the Board by reason of (i) death, (ii) Disability, or (iii) Retirement,
shall be vested in his or her entire Award notwithstanding the limitation of
Section 7(B) above.
SECTION EIGHT
CHANGES IN CAPITAL STRUCTURE
In the event of any reorganization, merger, consolidation,
recapitalization, liquidation, reclassification, stock dividend, stock split,
combination of shares, rights offering, or extraordinary dividend or divestiture
(including a spin-off), or any other change in the capital structure or shares
of the Company, the Board shall make adjustments, determined by the Board in its
discretion to be appropriate, as to the number and kind of securities subject to
this Plan and
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specified in Section 5 of this Plan and as to the number and kind of securities
covered by each outstanding Award and, where applicable, the price per share
thereunder.
SECTION NINE
RIGHTS AS A STOCKHOLDER
The Participant shall be entitled to vote the shares held by the
Company in the Custodial Account. Any cash or non-cash dividend payable with
respect to shares held in the Custodial Account will remain in the Custodial
Account subject to risk of forfeiture until such time as the shares with respect
to which such cash or non-cash dividend, as the case may be, was declared is
either distributed to the Participant or forfeited by the Participant.
Notwithstanding anything to the contrary contained herein, no Stock or
cash dividends shall be transferred by the Company to a Custodial Account prior
to the date of Stockholder Approval, and no Non-Employee Director shall be
entitled to any rights as a stockholder with respect to any Stock granted
hereunder, including, without limitation voting rights until such Stock has been
transferred to a Custodial Account.
SECTION TEN
TITLE
Subject to Section 13 herein, the shares held by the Company in a
Custodial Account shall be held in the name of the Participant until such shares
are (a) distributed to the Participant; (b) forfeited by the Participant; or (c)
transferred to a grantor "Rabbi Trust" in accordance with this Plan.
Notwithstanding anything to the contrary contained herein, no
Non-Employee Director shall be entitled to any rights as a stockholder with
respect to any Stock granted hereunder, including, without limitation voting
rights, until such Stock has been transferred to a Custodial Account.
SECTION ELEVEN
RISK OF LOSS
The Participant agrees to assume all risks in connection with any
decrease in the value of the shares granted to the Participant placed into the
Custodial Account for the benefit of the Participant.
SECTION TWELVE
NOTICE TO COMPANY
The Participant shall notify the Company immediately if he or she
elects to make an election under Section 83(b) of the Internal Revenue Code or
upon the occurrence of any other event resulting in the value of the shares
being included in the Participant's gross income prior to vesting.
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<PAGE> 5
SECTION THIRTEEN
DEFERRAL
Participant, provided he or she has not made the election referred to
in Section 12 herein, may elect by written notice to defer payment on all or a
portion of the shares held in the Custodial Account prior to any vesting,
subject to the following conditions;
A. Such election shall be irrevocable. An election to defer payment
shall be made at least sixty (60) days prior to any vesting for which the
election to defer payment is made. Participant may elect to defer the receipt of
the shares held in the Custodial Account prior to any vesting for a period of
time which ends no sooner than the earlier of (i) a date at least twenty-four
(24) months from the date of any such vesting or (ii) cessation of service as a
Non-Employee Director. During such deferral period, Participant shall not be
entitled to (i) vote the shares granted to him or her for which a deferral has
been elected, and (ii) currently receive cash dividends or non-cash dividends.
B. The Company shall establish a grantor "Rabbi Trust" and shall
establish thereunder on behalf of the Participant upon a deferral election a
liability account (the "Deferred Compensation Account") which shall be credited
with any shares, cash dividends, and non-cash dividends subject to such deferral
election. Any shares transferred from the Custodial Account to the Deferred
Compensation Account shall be retitled and held in the name of the trustee of
the grantor "Rabbi Trust".
C. There shall be credited to the Deferred Compensation Account an
additional amount with respect to the cash dividends (i.e., in addition to the
items credited pursuant to paragraph (B) hereof) equal to the earnings generated
through the investment of the cash dividends by the trustee of the grantor
trust.
D. The Company will provide an annual statement of the Deferred
Compensation Account to the Participant showing amounts credited to his or her
account in accordance with paragraph (C).
E. Nothing contained in this Plan and no action taken pursuant to the
provisions of this Plan shall create or be construed to create a trust of any
kind other than a grantor "Rabbi Trust", or a fiduciary relationship between the
Company and the Participant, his or her designated beneficiary or any other
person. Any amounts deferred under the provisions of this Plan shall continue
for all purposes to be a part of the general assets of the Company. To the
extent that Participant acquires a right to receive payment from the Company
under this Plan, such right shall be no greater than the right of any unsecured
general creditor of the Company.
F. The right of the Company or any other person to the payment of
deferred compensation or other benefits under this Plan shall not be assigned,
transferred, pledged, or encumbered except by will or by the laws of descent and
distribution.
SECTION FOURTEEN
GENDER
Where applicable, words in the feminine shall include the masculine,
words in the neuter shall include the masculine and feminine, and words in the
singular shall include the plural, and vice versa.
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<PAGE> 6
SECTION FIFTEEN
SUCCESSORS
This Plan shall be binding upon and inure to the benefit of the Company
and its subsidiaries, its successors and assigns and the Participant and his or
her heirs, executors, administrators and legal representatives.
SECTION SIXTEEN
NO RIGHT TO CONTINUE AS A DIRECTOR
Neither the Plan, nor the granting of an Award, nor any other action
taken pursuant to the Plan, shall constitute or be evidence of any agreement or
understanding, express or implied, that the Company will retain a Non-Employee
Director for any period of time, or at any particular rate of compensation.
Nothing in this Plan shall in any way limit or affect the right of the Board or
the stockholders of the Company to remove any Non-Employee Director or otherwise
terminate his or her service as a director of the Company.
SECTION SEVENTEEN
MISCELLANEOUS PROVISIONS
A. Government and Other Regulations. The obligation of the Company to
make payment of Awards in Stock or otherwise shall be subject to all applicable
laws, rules, and regulations, and to such approvals by any government agencies
as may be required. The Company shall be under no obligation to register under
the Securities Act of 1933, as amended ("Act"), any of the shares of Stock
issued, delivered or paid in settlement under the Plan. If Stock awarded under
the Plan may in certain circumstances be exempt from registration under the Act,
the Company may restrict its transfer in such manner as it deems advisable to
ensure such exempt status.
B. Governing Law. All matters relating to the Plan or to Awards granted
hereunder shall be governed by the laws of the State of Maryland, without regard
to its principles of conflict of laws.
C. Titles and Headings. The titles and headings of the sections in the
Plan are for convenience of reference only, and in the event of any conflict,
the text of the Plan, rather than such titles and headings, shall control.
SECTION EIGHTEEN
AMENDMENT AND TERMINATION
This Plan may be terminated or amended at any time and from time to
time by the Board as the Board shall deem advisable provided, however, that (a)
no such amendment shall be effective without approval of the stockholders of the
Company, if stockholder approval of the amendment is then required pursuant to
Rule 16b-3 under the Securities Exchange Act of 1934 or its successor, or the
applicable rules of any securities exchange, and (b) to the extent prohibited by
such Rule 16b-3 or its successors, the Plan may not be amended more than once
every six months, other than to comport with changes in the Internal Revenue
Code of 1986, as
17
<PAGE> 7
amended, or the regulations thereunder, or the Employee Retirement Income
Security Act of 1974, as amended, or the regulations thereunder. No modification
or amendment of this plan shall, without the written consent of the Participant,
materially and adversely affect his or her rights under this Plan.
18
<PAGE> 1
EXHIBIT 5.1
January 21, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE:VITALINK PHARMACY SERVICES, INC. REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
I am Secretary of Vitalink Pharmacy Services, Inc. (the "Company") and
have acted for the Company in connection with the preparation of the Company's
Registration Statement on Form S-8 filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended. The
Registration Statement covers 20,000 shares of the Company's Common Stock, $.01
par value, offered under the Vitalink Pharmacy Services, Inc. 1997 Non-Employee
Director Stock Compensation Plan (the "Plan").
In connection with the rendering of the opinion set forth below, I have
reviewed the records of the Company, the minutes of the meetings of the
stockholders and directors of the Company and such other records and documents
as was necessary in my judgment to so render the following opinion:
Based on the foregoing, I am of the opinion that:
1. The Company is a corporation duly incorporated and existing under
the laws of the State of Delaware; and
2. The shares of Common Stock of the Company available for issuance
under the Plan, when issued and delivered pursuant to the Plan, will be duly
authorized, validly issued, fully paid and nonassessable.
I hereby consent to the filing of a copy of this opinion with the
Commission as an Exhibit to the Registration Statement referred to above.
Very truly yours,
/s/ Robert W. Horner, III
-------------------
Robert W. Horner, III
Senior Vice President, Secretary and General Counsel
19
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated June 27, 1997
included in Vitalink Pharmacy Services, Inc.'s Form 10-K/A for the year ended
May 31, 1997 and to all references to our Firm included in this registration
statement.
Washington, DC /s/ Arthur Anderson LLP
January 21, 1998 ------------------------
20
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Robert W. Horner III, 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
registration statements or amendments (including post-effective amendments)
thereto, with respect to the registration under the Securities Act of 1933, as
amended, of shares of the common stock, par value $.01 per share (the "Common
Stock"), of Vitalink Pharmacy Services, Inc. ("Vitalink") issued and delivered
pursuant to Vitalink's 1997 Non-Employee Director Stock Compensation Plan or
1996 Long-Term Incentive Plan 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, as fully as to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
/s/ Donna L. DeNardo
-------------------------------------
Donna L. DeNardo
Date: January 22, 1998
21
<PAGE> 1
Exhibit 24.2
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Robert W. Horner III, 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
registration statements or amendments (including post-effective amendments)
thereto, with respect to the registration under the Securities Act of 1933, as
amended, of shares of the common stock, par value $.01 per share (the "Common
Stock"), of Vitalink Pharmacy Services, Inc. ("Vitalink") issued and delivered
pursuant to Vitalink's 1997 Non-Employee Director Stock Compensation Plan or
1996 Long-Term Incentive Plan 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, as fully as to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
/s/ Scott T. Macomber
-------------------------------------
Scott T. Macomber
Date: January 22, 1998
22
<PAGE> 1
Exhibit 24.3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Robert W. Horner III, 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
registration statements or amendments (including post-effective amendments)
thereto, with respect to the registration under the Securities Act of 1933, as
amended, of shares of the common stock, par value $.01 per share (the "Common
Stock"), of Vitalink Pharmacy Services, Inc. ("Vitalink") issued and delivered
pursuant to Vitalink's 1997 Non-Employee Director Stock Compensation Plan or
1996 Long-Term Incentive Plan 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, as fully as to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
/s/ Stewart Bainum, Jr.
-------------------------------------
Stewart Bainum, Jr.
Date: January 22, 1998
23
<PAGE> 1
Exhibit 24.4
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Robert W. Horner III, 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
registration statements or amendments (including post-effective amendments)
thereto, with respect to the registration under the Securities Act of 1933, as
amended, of shares of the common stock, par value $.01 per share (the "Common
Stock"), of Vitalink Pharmacy Services, Inc. ("Vitalink") issued and delivered
pursuant to Vitalink's 1997 Non-Employee Director Stock Compensation Plan or
1996 Long-Term Incentive Plan 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, as fully as to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
/s/ Joseph R. Buckley
-------------------------------------
Joseph R. Buckley
Date: January 22, 1998
24
<PAGE> 1
Exhibit 24.5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Robert W. Horner III, 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
registration statements or amendments (including post-effective amendments)
thereto, with respect to the registration under the Securities Act of 1933, as
amended, of shares of the common stock, par value $.01 per share (the "Common
Stock"), of Vitalink Pharmacy Services, Inc. ("Vitalink") issued and delivered
pursuant to Vitalink's 1997 Non-Employee Director Stock Compensation Plan or
1996 Long-Term Incentive Plan 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, as fully as to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
/s/ James A. MacCutcheon
-------------------------------------
James A. MacCutcheon
Date: January 22, 1998
25
<PAGE> 1
Exhibit 24.6
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Robert W. Horner III, 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
registration statements or amendments (including post-effective amendments)
thereto, with respect to the registration under the Securities Act of 1933, as
amended, of shares of the common stock, par value $.01 per share (the "Common
Stock"), of Vitalink Pharmacy Services, Inc. ("Vitalink") issued and delivered
pursuant to Vitalink's 1997 Non-Employee Director Stock Compensation Plan or
1996 Long-Term Incentive Plan 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, as fully as to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
/s/ James H. Rempe
-------------------------------------
James H. Rempe
Date: January 22, 1998
26
