-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TCNEp2nLbXOoFwXvUvH/9NP/LmkuaORs9UrgvP3ap9TN8wnQUi35S5mIOn5zNSmt /oHZYSZv/tnIBwTBzJ8kWQ== 0000950152-98-003038.txt : 19980406 0000950152-98-003038.hdr.sgml : 19980406 ACCESSION NUMBER: 0000950152-98-003038 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19980403 EFFECTIVENESS DATE: 19980403 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: NCS HEALTHCARE INC CENTRAL INDEX KEY: 0001004990 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DRUG STORES AND PROPRIETARY STORES [5912] IRS NUMBER: 341816187 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-49417 FILM NUMBER: 98587667 BUSINESS ADDRESS: STREET 1: 3201 ENTERPRISE PKWY STREET 2: STE 2200 CITY: BEACHWOOD STATE: OH ZIP: 44122 MAIL ADDRESS: STREET 1: 1400 MCDONALD INVESTMENT CENTER STREET 2: 800 SUPERIOR AVE CITY: CLEVELAND STATE: OH ZIP: 44114 S-8 1 NCS HEALTHCARE, INC. FORM S-8 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 3, 1998 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 -------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------- NCS HEALTHCARE, INC. (Exact Name of Registrant as Specified in its Charter) Delaware 34-1816187 (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 3201 Enterprise Parkway, Suite 220, Beachwood, Ohio 44122 (216) 464-5154 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) --------
Aberdeen Group, Inc. 1995 Amended and Restated NCS HealthCare, Inc. 1996 Long Term Incentive Plan Employee Stock Purchase and Option Plan December 3, 1993 Amended and Restated Stock Option December 28, 1994 Amended and Restated Stock Option Agreement by and between Aberdeen Group, Inc. and Richard Agreement by and between Aberdeen Group, Inc. and Jeffrey L. Osborne, as amended December 7, 1995 R. Steinhilber, as amended December 7, 1995 (Full Titles of the Plans) Copy to: Jon H. Outcalt Thomas F. McKee, Esq. Chairman of the Board Calfee, Halter & Griswold LLP NCS HealthCare, Inc. 1400 McDonald Investment Center 3201 Enterprise Parkway, Suite 220 800 Superior Avenue Beachwood, Ohio 44122 Cleveland, Ohio 44114 (216) 464-5154 (216) 622-8200 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
============================================================================================================================ Proposed Maximum Proposed Maximum Title of Securities to be Amount to be Offering Price Aggregate Offering Registered Registered Per Share (1) Price (1) Amount of Registration Fee - ---------------------------------------------------------------------------------------------------------------------------- Class A Common Stock, $.01 par value per share, issuable upon exercise of options 883,528 (2) $31.750 $28,052,014 $8,276 ============================================================================================================================
(1) Estimated in accordance with Rule 457(c) solely for the purpose of calculating the registration fee and based upon the average of the high and low prices as quoted on The Nasdaq Stock Market for March 30, 1998. (2) Of the 883,528 shares of Class A Common Stock being registered, an aggregate of (i) 18,978 shares are issuable upon exercise of options granted pursuant to the Aberdeen Group, Inc. 1995 Amended and Restated Employee Stock Purchase and Option Plan, (ii) 700,000 shares are issuable upon exercise of options granted pursuant to the NCS HealthCare, Inc. 1996 Long Term Incentive Plan, (iii) 46,092 shares are issuable upon exercise of options granted pursuant to the December 3, 1993 Amended and Restated Stock Option Agreement by and between Aberdeen Group, Inc. and Richard L. Osborne, as amended December 7, 1995, and (iv) 118,458 shares issuable upon exercise of options granted pursuant to the December 28, 1994 Amended and Restated Stock Option Agreement by and between Aberdeen Group, Inc. and Jeffrey R. Steinhilber, as amended December 7, 1995. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents of NCS HealthCare, Inc. (the "Company"), previously filed with the Securities and Exchange Commission, are incorporated herein by reference: 1. The Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1997; 2. The Company's Quarterly Reports on Form 10-Q for the periods ended September 30, 1997 and December 31, 1997; 3. The Company's Current Reports on Form 8-K, dated January 6, 1998 and January 30, 1998; and 4. The Company's Registration Statement on Form 8-A. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this Registration Statement, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the Registration Statement and to be a part hereof from the date of filing of such documents, other than the portions of such documents which by statute, by designation in such document or otherwise, are not deemed to be filed with the Commission or are not required to be incorporated herein by reference. Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other subsequently filed document that also is, or is deemed to be, incorporated by reference in this Registration Statement modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law sets forth the conditions and limitations governing the indemnification of officers, Directors and other persons. Section 145 provides that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or contemplated action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation or was serving at the request of the corporation in a similar capacity with another corporation or other entity, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement incurred in connection therewith if he acted in good faith and in a manner that he reasonably believed to be in the best interests of the corporation. With respect to a suit by or in the right of the corporation, indemnity may be provided to the foregoing persons under Section 145 on a basis similar to that set forth above, except that no indemnity may be provided in respect of any claim, issue or matter as to which such person has been adjudged to be liable to the corporation unless and to the extent that the Delaware Court of Chancery or the court in which such action, suit or proceeding was brought determines that despite the adjudication of liability, but in view of all the circumstances of the case, such person is entitled to indemnity for such expenses as the court deems proper. Moreover, Section 145 provides for mandatory indemnification of a Director, officer, employee or agent of the corporation to the extent that such person has been successful in defense of any such action, suit or proceeding and provides that a corporation may pay the expenses of an officer or director in defending an action, suit or proceeding upon receipt of an undertaking to repay such amounts if it is ultimately determined that such person is not entitled to be indemnified. Section 145 establishes provisions for determining that a given person is entitled to indemnification, and also provides that the indemnification provided by or granted under Section 145 is not exclusive of any rights to indemnity or advancement of expenses to which such person may be entitled under any by-law, agreement, vote of stockholders or disinterested Directors or otherwise. The Registrant's By-Laws, as amended, provide that the Registrant shall indemnify, to the fullest extent II-1 3 permitted by Delaware law, any Director or officer who was or is a party or is threatened to be made a party to any action, suit or proceeding by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a Director or officer of the Registrant, or is or was serving at the request of the Registrant as a Director, officer, partner, trustee, employee or agent of another entity, against all expenses, liabilities and losses (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties or amounts paid in settlement) reasonably incurred by such person in connection therewith. In addition, provisions of the Registrant's By-Laws provide for the advancement of expenses, including attorneys' fees, incurred by a Director or officer of the Registrant in defending any proceeding for which indemnification is provided under the By-Laws upon receipt of an undertaking to repay such amounts if it is ultimately determined that he or she is not entitled to be indemnified by the Registrant as authorized in the By-Laws. In addition, the By-Laws permit the Registrant to maintain insurance, at its expense, to protect itself and any of its Directors or officers or individuals serving at the request of the Registrant as a Director, officer, partner, trustee, employee or agent of another entity, against any expense, liability or loss, whether or not the Registrant would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. Section 102(b) of the Delaware General Corporation Law permits corporations to eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of the director's duty of care. Accordingly, the Registrant's Amended and Restated Certificate of Incorporation provides that a Director of the Registrant shall not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a Director, except for liability (i) for any breach of the Director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the Director derived an improper personal benefit. The Registrant's Amended Certificate of Incorporation further provides that any repeal, amendment or other modification of the foregoing provisions will not affect the liability or alleged liability of any Director of the corporation then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts. In addition to the foregoing, the Registrant has entered into indemnity agreements with its executive officers and Directors. The indemnity agreements provide that the indemnitee will be indemnified to the fullest extent permitted by law against all expenses (including attorneys' fees), judgments, fines or amounts paid or incurred by them for settlement in any action or proceeding on account of their service as a Director or officer of the Registrant or of any subsidiary of the Registrant or of any other entity in which they are serving at the request of the Registrant. The agreements bind the Registrant to provide indemnification to its Directors and executive officers whether or not the Registrant maintains Directors' and officers' liability insurance coverage and regardless of any future changes in the By-Laws. The protection to be afforded Directors and executive officers by the agreements is broader than that provided under the indemnification provisions contained in the By-Laws, in that the agreements expressly provide for the advancement of expenses and for indemnification with respect to amounts paid in settlements of derivative actions. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. See the Exhibit Index at Page E-1 of this Registration Statement. ITEM 9. UNDERTAKINGS. The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represents a fundamental change in the information set forth in the registration statement; II-2 4 (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (5) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to Directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions described under Item 6 above, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a Director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted against the Registrant by such Director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. II-3 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Beachwood, State of Ohio, on April 3, 1998. NCS HEALTHCARE, INC. By: /s/ Kevin B. Shaw --------------------------- Kevin B. Shaw, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, hereby constitutes and appoints Jon H. Outcalt, Kevin B. Shaw, Gerald D. Stethem, Thomas F. McKee and John J. Jenkins, or any one or more of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him in any and all capacities, to sign any or all amendments or post-effective amendments to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto each of such attorneys-in-fact and agents, or any one of them, full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters and hereby ratifying and confirming all that each of such attorneys-in-fact and agents or his substitute or substitutes may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on April 3, 1998. /s/ Jon H. Outcalt Chairman of the Board of Directors - ------------------------------ Jon H. Outcalt /s/ Kevin B. Shaw President, Chief Executive Officer - ------------------------------ and Director (Principal Executive Kevin B. Shaw Officer) /s/ Gerald D. Stethem Chief Financial Officer (Principal - ------------------------------ Accounting and Financial Officer) Gerald D. Stethem /s/ A. Malachi Mixon III Director - ------------------------------ A. Malachi Mixon III /s/ Boake A. Sells Director - ------------------------------ Boake A. Sells /s/ Richard L. Osborne Director - ------------------------------ Richard L. Osborne /s/ Phyllis K. Wilson Director - ------------------------------ Phyllis K. Wilson II-4 6 NCS HEALTHCARE, INC. EXHIBIT INDEX ------------- Exhibit No. Exhibit Description ----------- ------------------- 4.1 Amended and Restated Certificate of Incorporation of the Company. 4.2 By-Laws of the Company, as amended. 4.3 Specimen certificate of the Company's Class A Common Stock. (A) 4.4 Specimen certificate of the Company's Class B Common Stock. (A) 4.5 Form of 5-3/4% Convertible Subordinated Debentures due 2004. (B) 4.6 Indenture, dated August 13, 1997, between the Company and National City Bank, as Trustee. (B) 4.7 1996 Long Term Incentive Plan. (A) 4.8 Aberdeen Group, Inc. 1995 Amended and Restated Employee Stock Purchase and Option Plan. (A) 4.9 Amended and Restated Stock Option Agreement, dated as of December 7, 1995, by and between Aberdeen Group, Inc. and Richard L. Osborne. (A) 4.10 Amended and Restated Stock Option Agreement, dated as of December 7, 1995, by and between Aberdeen Group, Inc. and Jeffrey R. Steinhilber. (A) 5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity of the shares of Class A Common Stock. 15.1 Letter of Ernst & Young LLP regarding unaudited interim financial information. 23.1 Consent of Calfee, Halter & Griswold LLP (included in Exhibit 5.1 of this Registration Statement). 23.2 Consent of Ernst & Young LLP. 24.1 Power of Attorney (see page II-4 of this Registration Statement). 24.2 Power of Attorney and related certified resolution. - ------------------ (A) Incorporated herein by reference to the appropriate exhibit to the Registrant's Registration Statement on Form S-1 (Reg. No. 33-80455). (B) Incorporated herein by reference to the appropriate exhibit to the Registrant's Registration Statement on Form S-3, as amended (Reg. No. 333-35551). E-1 EX-4.1 2 EXHIBIT 4.1 1 Exhibit 4.1 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF NCS HEALTHCARE, INC. ARTICLE I: NAME The name of the Corporation is NCS HealthCare, Inc. ARTICLE II: REGISTERED OFFICE The address of the registered office of the Corporation in the State of Delaware is 1013 Centre Road, City of Wilmington, County of New Castle, Zip Code 19805. The name of the registered agent of the Corporation at such address is Corporation Service Company. ARTICLE III: PURPOSE The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (the "General Corporation Law"). ARTICLE IV: CAPITAL STOCK Section 1. Authorized Capital Stock. The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is Seventy One Million (71,000,000), consisting of the following classes of capital stock: (a) Fifty Million (50,000,000) shares of Class A Common Stock, par value $.01 per share (the "Class A Common Stock"); (b) Twenty Million (20,000,000) shares of Class B Common Stock, par value $.01 per share (the "Class B Common Stock," and together with the Class A Common Stock, the "Common Stock"); and (c) One Million (1,000,000) shares of Preferred Stock, par value $.01 per share (the "Preferred Stock"). 2 Section 2. Voting Rights. (a) Each outstanding share of Class A Common Stock shall entitle the record holder thereof to exercise one (1) vote in the election of directors of the Corporation and with respect to all other matters upon which stockholders of the Corporation are entitled to vote. (b) Each outstanding share of Class B Common Stock shall entitle the record holder thereof to exercise ten (10) votes in the election of directors of the Corporation and with respect to all other matters upon which stockholders of the Corporation are entitled to vote. (c) Holders of outstanding shares of Class A Common Stock and Class B Common Stock, respectively, shall vote separately as a class with respect to any amendment to this Certificate of Incorporation which would increase the authorized number of shares of Class B Common Stock, or to effect other amendments to this Certificate of Incorporation (other than amendments which increase the authorized number of shares of Class A Common Stock, for which such class voting requirement shall not apply) that alter or change the powers, preferences or special rights of either the Class A Common Stock or the Class B Common Stock so as to affect them adversely. Except as provided in the preceding sentence, and except as is otherwise required by the General Corporation Law, holders of Class A Common Stock and Class B Common Stock shall vote together as a single class in the election of directors of the Corporation and with respect to all other matters submitted to the stockholders of the Corporation for a vote. (d) Subject to the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders. (e) Every reference in this Certificate of Incorporation to the "voting power" of shares of capital stock of the Corporation or of shares of capital stock of any other corporation shall refer to the votes exercisable by the holders of such shares of capital stock. (f) Except as otherwise provided in this Article IV, all shares of Class A Common Stock and all shares of Class B Common Stock shall be identical, shall entitle the holders thereof to the same powers, preferences, rights and privileges, and shall be subject to the same qualifications, limitations and restrictions. Section 3. Dividends and Distributions. Subject to the preferences applicable to the Preferred Stock outstanding at any time, holders of shares of Class A Common Stock and Class B Common Stock shall be entitled to receive such dividends, payable in cash or otherwise, as may be declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefor; provided, that no dividend or other distribution may be declared or paid on the outstanding Class B Common Stock unless a dividend or other distribution, as the case may be, of equal or greater amount is simultaneously declared or paid, as the case may be, on the outstanding Class A Common Stock. The Corporation shall not in any manner subdivide (by stock split or otherwise) or combine (by reverse stock split or otherwise), or pay or declare any 3 stock dividend on, the outstanding shares of either the Class A Common Stock or the Class B Common Stock unless the outstanding shares of the other class of common stock shall be proportionately subdivided or combined or the holders of such other class of common stock shall have received a proportionate stock dividend. The Corporation may distribute only shares of Class A Common Stock upon any subdivision, combination or stock dividend in respect of the outstanding shares of Class A Common Stock, and may distribute only Class B Common Stock upon any subdivision, combination or stock dividend in respect of the outstanding shares of Class B Common Stock. Section 4. Preferred Stock. The Board of Directors of the Corporation may by resolution authorize the issuance of shares of Preferred Stock from time to time in one or more series. Shares of Preferred Stock that are redeemed, purchased or otherwise acquired by the Corporation may be reissued except as otherwise provided by law. The Board of Directors is hereby authorized to fix or alter the designations, powers and preferences, and relative, participating, optional or other rights of the Preferred Stock, if any, and the qualifications, limitations or restrictions of the Preferred Stock, including, without limitation, dividend rights (and whether dividends are cumulative), conversion rights, if any, voting rights (including the number of votes, if any, per share, as well as the number of members, if any, of the Board of Directors of the Corporation which each series of Preferred Stock may be entitled to elect), rights and terms of redemption (including sinking fund provisions, if any), redemption price and liquidation preferences of any wholly unissued series of Preferred Stock, and the number of shares constituting any such series and the designation thereof, and to increase or decrease the number of shares of any such series subsequent to the issuance of shares of such series, but not below the number of shares of such series then outstanding. Notwithstanding the foregoing, the Board of Directors shall have no power to alter the rights of any shares of Preferred Stock then outstanding without the consent of the holders of a majority (or other greater proportion established by the Board of Directors) of the outstanding shares the rights of which are to be altered. Section 5. Distributions Upon Liquidation. In the event of any dissolution, liquidation or winding up of the affairs of the Corporation in accordance with applicable law, whether voluntary or involuntary, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of each series of Preferred Stock, if any, shall be entitled to receive, out of the net assets of the Corporation, an amount for each share of such series of Preferred Stock equal to the amount fixed and determined by the Board of Directors in the resolution or resolutions creating such series and providing for the issuance of such shares, plus an amount equal to all dividends accrued and unpaid on shares of such series to the date fixed for distribution, and no more, before any of the assets of the Corporation shall be distributed or paid over to the holders of Common Stock. After payment in full of said amounts to the holders of Preferred Stock of all series, the remaining assets and funds of the Corporation shall be divided ratably among and paid to the holders of shares of Common Stock in accordance with the number of shares of Common Stock held by each such holder, without preference or priority of any one class of Common Stock over any other. If, upon such dissolution, liquidation or winding up, the assets of the Corporation distributable as aforesaid among the holders of Preferred Stock of all series shall be insufficient to permit full payment to them of said preferential amounts, then such assets shall be distributed ratably among such holders of Preferred Stock in proportion to the respective total amounts that 4 they shall be entitled to receive as provided in this Section 5. For purposes of this Section 5, a consolidation or merger of the Corporation with any other corporation, or the sale, transfer or lease of all or substantially all of the assets of the Corporation shall not constitute or be deemed to be a liquidation, dissolution or winding up of the Corporation. Section 6. Optional Conversion of Class B Common Stock. The holders of shares of Class B Common Stock shall have the right, at their option, to convert any or all of such shares into shares of Class A Common Stock on the terms and conditions contained in this Section 6. (a) Each share of Class B Common Stock shall be convertible, at any time, at the office of any transfer agent for the Class A Common Stock, and at such other place or places, if any, as the Board of Directors may determine, into one fully paid and nonassessable share of Class A Common Stock, upon surrender at such office or other place of the certificate or certificates representing the shares of Class B Common Stock to be so converted. In no event, upon conversion of any share of Class B Common Stock into Class A Common Stock, shall any allowance or adjustment be made in respect of dividends on the Class A Common Stock or the Class B Common Stock. (b) Shares of Class B Common Stock shall be deemed to have been converted and the person converting the same shall become a holder of Class A Common Stock for the purpose of receiving dividends and for all other purposes whatsoever as of the date when the certificate or certificates for the shares of Class B Common Stock to be converted are surrendered to the Corporation as provided in Section 6(e) of this Article IV. (c) A number of shares of Class A Common Stock sufficient to provide, upon the basis hereinbefore set forth, for the conversion of all shares of Class B Common Stock outstanding shall at all times be reserved by the Corporation for the exercise of the conversion rights of the holders of shares of Class B Common Stock. (d) If the Corporation shall, at any time, be consolidated or merged with, or shall sell its property as an entirety or substantially as an entirety to, any other corporation or corporations, or in the event of any recapitalization or reclassification of the capital stock of the Corporation, proper provisions shall be made as a part of the terms of each such consolidation, merger, sale, recapitalization or reclassification so that the holder of any shares of Class B Common Stock outstanding immediately prior to such consolidation, merger, sale, recapitalization or reclassification shall thereafter be entitled to and only entitled to conversion rights upon the terms and with respect to such securities of the consolidated, merged or purchasing corporation, or with respect to such securities issued upon such recapitalization or reclassification, as such holder would have been entitled to receive upon such consolidation merger, sale, recapitalization or reclassification if such holder had exercised the conversion privilege immediately prior thereto. The provisions of this Section 6(d) shall similarly apply to successive consolidations, mergers, sales, recapitalizations or reclassifications. (e) Before any holder of shares of Class B Common Stock shall be entitled to convert the same into shares of Class A Common Stock, he shall surrender his certificate or 5 certificates for such shares of Class B Common Stock to the Corporation at the office of a transfer agent for the Class A Common Stock, or at such other place or places, if any, as the Board of Directors may determine, duly endorsed or accompanied if appropriate by duly executed instruments of transfer, and shall give written notice to the Corporation at said office or place that he elects so to convert the shares of Class B Common Stock represented by the certificate or certificates so surrendered. Unless the shares of Class A Common Stock are to be issued in the name of the registered owner of the certificates surrendered, the holder shall state in writing the name or names in which he wishes the certificate or certificates for shares of Class A Common Stock to be issued, and shall furnish all requisite stock transfer and stock issuance stamps, or funds therefor. As soon as practicable after such deposit of certificates for shares of Class B Common Stock, accompanied by the written notice above prescribed, the Corporation shall issue and deliver, at the office or place at which such certificates were deposited, to the person for whose account shares of Class B Common Stock were so surrendered, or to his assignee or assignees, the certificates for the number of whole shares of Class A Common Stock to which he shall be entitled as aforesaid. (f) The provisions of this Section 6 shall be in addition to the provisions of Sections 7(a)(1)(D), 7(a)(7)(C), 7(b) and 7(d) of this Article IV, which require automatic conversion of shares of Class B Common Stock in the circumstances provided therein. (g) The shares of Class B Common Stock converted into shares of Class A Common Stock as provided in this Section 6 or in Section 7 of this Article IV shall resume the status of authorized but unissued shares of Class B Common Stock. Section 7. Limitations on Transfer of Class B Common Stock. (a) Subject to the provisions of Section 7(i) of this Article IV, no person holding any shares of Class B Common Stock may transfer, and the Corporation shall not register the transfer of, such shares of Class B Common Stock or any interest therein, whether by sale, assignment, gift, bequest, appointment or otherwise, except to a "Permitted Transferee" of such person. The term "Permitted Transferee" shall mean and include only such persons as are described in Sections 7(a)(1) through 7(a)(7) of this Article IV. For purposes of this Section 7, "Effective Time" shall mean the time at which this Amended and Restated Certificate of Incorporation became effective pursuant to Section 103 of the General Corporation Law. (1) In the case of a holder of shares of Class B Common Stock (a "Holder") who is a natural person and the holder of record and beneficial owner of shares subject to a proposed transfer, "Permitted Transferee" means: (A) The Holder, the spouse of such Holder, any lineal descendant of a grandparent of such Holder, or any spouse of such lineal descendant (herein collectively referred to as such Holder's "Family Members"); (B) The trustee of a trust solely for the benefit of such Holder or such Holder's Family Members, provided that such trust may also grant a general or special 6 power of appointment to one or more of such Holder's Family Members and may permit trust assets to be used to pay taxes, legacies and other obligations of the trust or of the estates of one or more of such Holder's Family Members payable by reason of the death of such Family Members; (C) The trustee of a trust which is not solely for the benefit of such Holder or such Holder's Family Members so long as such Holder and/or one or more of such Holder's Permitted Transferees (determined under this Section 7(a)(1)) possess the power to vote or direct the vote of the shares of Class B Common Stock held by such trustee; (D) A corporation if control thereof is exercisable by shareholders thereof consisting exclusively of, or a partnership or limited liability company if control thereof is exercisable by partners or members thereof consisting exclusively of, the Holder and his Permitted Transferees determined under this Section 7(a)(1), provided that if for any reason, including without limitation any change in the ownership or the voting rights of the stock of such corporation, or in such partners or partnership interests, or in such members or membership interests, or otherwise, such corporation, partnership or limited liability company would no longer qualify as a Permitted Transferee of such Holder or his Permitted Transferees, all shares of Class B Common Stock then held by such corporation, partnership or limited liability company shall immediately and automatically, without further act or deed on the part of the Corporation or any other person, be converted into shares of Class A Common Stock on a share-for-share basis, and stock certificates formerly representing such shares of Class B Common Stock shall thereupon and thereafter be deemed to represent the like number of shares of Class A Common Stock; (E) An organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended; or (F) The executor, administrator or personal representative of the estate of such Holder or the guardian or conservator of such Holder adjudged disabled by a court of competent jurisdiction, acting in his capacity as such. (2) In the case of a Holder holding the shares subject to a proposed transfer as trustee pursuant to a trust (other than a trust described in Section 7(a)(3) below, "Permitted Transferee" means (A) the person who established such trust and (B) any Permitted Transferee of such person determined pursuant to Section 7(a)(1) above. (3) In the case of a Holder holding shares subject to a proposed transfer as trustee pursuant to a trust which was irrevocable as of the Effective Time, "Permitted Transferee" means (A) any person to whom or for whose benefit principal may be distributed either during or at the end of the term of such trust whether by power of appointment or otherwise and (B) any Permitted Transferee of any such person determined pursuant to Section 7(a)(1) above. (4) In the case of a Holder which is a partnership or a limited liability 7 company holding shares subject to a proposed transfer, "Permitted Transferee" means (A) any partner or member thereof owning more than ten percent (10%) of the equity of such partnership or limited liability company as of the Effective Time and (B) any Permitted Transferee of such partner or member. (5) In the case of a Holder which is a corporation (other than an organization described in Section 7(a)(1)(E) above) holding shares subject to a proposed transfer, "Permitted Transferee" means (A) any stockholder owning more than ten percent (10%) of the equity of such corporation as of the Effective Time, (B) any Permitted Transferee of such stockholder, (C) the survivor of a merger or consolidation of such corporation, or (D) any person who transferred to such corporation the shares of Class B Common Stock that are the subject of the proposed transfer. (6) In the case of a Holder who is the executor, administrator or personal representative of the estate of a deceased Holder, a guardian or conservator of the estate of a disabled Holder, or a trustee of the estate of a bankrupt or insolvent Holder, "Permitted Transferee" means a Permitted Transferee of such deceased, disabled, bankrupt or insolvent Holder as determined pursuant to this Section 7(a) of this Article IV. (7) In the case of any Holder, "Permitted Transferee" includes (A) any holder of record as of the Effective Time of any shares of Class B Common Stock, provided that if such holder of record is a corporation, partnership or limited liability company, control thereof is exercisable, as of the date of a proposed transfer, by shareholders, partners or members thereof, as the case may be, consisting exclusively of persons who would have been Permitted Transferees of such corporation, partnership or limited liability company as of the Effective Time (an "Original Holder"), (B) any holder as of the Effective Time of an outstanding option to purchase any shares of Class B Common Stock (an "Original Optionee"), and (C) any Permitted Transferee (as determined under Sections 7(a)(1) through 7(a)(6) as of the time of the proposed transfer of shares of Class B Common Stock to such person) of an Original Holder or of an Original Optionee; provided that, in each case, if a transferee under this Section 7(a)(7) is a corporation, partnership or limited liability company, all of the provisions of Section 7(a)(1)(D) of this Article IV shall apply to such person and the shares transferred to such person. (b) Notwithstanding anything to the contrary set forth herein, any holder of shares of Class B Common Stock may pledge such shares to a pledgee pursuant to a bona fide pledge of such shares as collateral security for indebtedness due to the pledgee, provided that such shares may not be transferred to or registered in the name of the pledgee unless such pledgee is a Permitted Transferee. In the event of foreclosure or other similar action by the pledgee, such pledged shares of Class B Common Stock shall automatically, without any act or deed on the part of the Corporation or any other person, be converted into shares of Class A Common Stock on a share-for-share basis, unless within five (5) business days after such foreclosure or other similar event such pledged shares are returned to the pledgor or transferred to a Permitted Transferee of the pledgor. (c) For purposes of this Section 7 of this Article IV: 8 (1) The relationship of any person that is derived by or through legal adoption shall be considered a natural one. (2) Each joint owner of shares of Class B Common Stock shall be considered a Holder of such shares. (3) A minor for whom shares of Class B Common Stock are held pursuant to a Uniform Gifts to Minors Act or similar law shall be considered a Holder of such shares. (4) Unless otherwise specified, the term "person" means both natural persons and legal entities. (5) The giving of a proxy in connection with a solicitation of proxies subject to the provisions of Section 14 of the Securities Exchange Act of 1934 (or any successor provision thereof) and the rules and regulations promulgated thereunder shall not be deemed to constitute the transfer of an interest in the shares of Class B Common Stock which are the subject of such proxy. (d) Any purported transfer of shares of Class B Common Stock other than to a Permitted Transferee shall automatically, without any further act or deed on the part of the Corporation or any other person, result in the conversion of such shares into shares of Class A Common Stock on a share-for-share basis, effective on the date of such purported transfer. The Corporation may, as a condition to transfer or registration of transfer of shares of Class B Common Stock to a purported Permitted Transferee, require that the record holder establish to the satisfaction of the Corporation, by filing with the Corporation or the transfer agent an appropriate affidavit or certificate or such other proof as the Corporation may deem necessary, that such transferee is a Permitted Transferee. (e) Anything in this Article IV notwithstanding but subject to the provisions of Section 7(i), no share of Class B Common Stock may be held of record but not beneficially by a broker or dealer in securities, a bank or voting trustee or a nominee of any such, or otherwise held of record but not beneficially by a nominee of the beneficial owner of such share other than by a trustee of a trust which would be a Permitted Transferee pursuant to Section 7(a)(1)(B) or 7(a)(1)(C) (any such form of prohibited holding being referred to herein as holding in "street" or nominee name); provided, however, that if any person establishes to the satisfaction of the Corporation in accordance with this Section 7(e) that he is the beneficial owner of any such shares of Class B Common Stock, the Corporation shall issue such share in the name of such beneficial owner. Any such beneficial owner who desires to have shares of Class B common Stock issued in his name in the circumstances described in this Section 7(e) shall file an affidavit or certificate with the Secretary of the Corporation setting forth the name and address of such beneficial owner and certifying that he is the beneficial owner of the shares of Class B Common Stock in question. (f) The Corporation shall note on all certificates representing shares of Class B 9 Common Stock that there are restrictions on transfer and registration of transfer to the extent imposed by this Section 7. (g) For purposes of this Section 7, "beneficial ownership" shall mean possession of the power to vote or to direct the vote or to dispose of or to direct the disposition of the shares of Class B Common Stock in question, and a "beneficial owner" of a share of Class B Common Stock shall be the person having beneficial ownership thereof. For purposes of this Section 7, "control" shall mean, with respect to a corporation, the power to elect or appoint a majority of the board of directors or like governing body thereof, and with respect to a partnership or limited liability company, the power to cause such partnership or limited liability company to vote and dispose of shares of Class B Common Stock subject to a proposed transfer to such partnership or limited liability company. (h) The Board of Directors may, from time to time, establish practices and procedures and promulgate rules and regulations, in addition to those set forth in this Article IV, and amend or revoke any such, regarding the evidence necessary to establish entitlement of any transferee or purported transferee of shares of Class B Common Stock to be registered as a Permitted Transferee. Should the transferee or purported transferee of any such share wish to contest any decision of the Corporation on the question whether the transferee or purported transferee has established entitlement to be registered as a Permitted Transferee of shares of Class B Common Stock, then the Board of Directors shall in its sole discretion make the final determination. (i) The restrictions on transfer and the remaining provisions set forth in this Section 7 (other than this Section 7(i)) shall automatically, without any act or deed on the part of the Corporation or any other person, be cancelled (as to all but not less than all shares of Class B Common Stock then outstanding or thereafter issued) and of no further force or effect if at any time the Board of Directors, in its sole discretion, determines that the restrictions on transfer set forth in this Section 7 may have a material adverse effect on the liquidity, marketability or market value of the outstanding shares of Class A Common Stock. Such cancellation shall be effective as of the date of such determination by the Board of Directors or as of such later date as the Board may determine. Written notice of such determination and cancellation shall be given to all holders of shares of Class B Common Stock as of such date as shown on the records of the Corporation or its transfer agent. No such determination by the Board of Directors shall affect the validity of any act or the effect of any provision of this Article IV which occurred prior to the effective date of such cancellation. In the event that a holder of shares of Class B Common Stock transfers such shares after the effective date of such cancellation to a non-Permitted Transferee, such transfer shall be deemed to be an election by such holder to convert such shares into shares of Class A Common Stock immediately prior to the effectiveness of such transfer, unless the transferring holder or his agent shall deliver written notice to the Corporation or its transfer agent at the time of delivery of the certificate or certificates representing the shares of Class B Common Stock to be transferred that such holder intends to transfer the shares of Class B Common Stock and that no such conversion is intended. 10 ARTICLE V: BOARD OF DIRECTORS The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authorities herein or by statute expressly conferred upon it, the Board of Directors may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the General Corporation Law, the Certificate of Incorporation of the Corporation, and the By-laws of the Corporation. Except as otherwise provided by the General Corporation Law, any committee of the Board of Directors shall have and may exercise, to the extent provided in the By-laws of the Corporation or by the resolutions of the Board of Directors, all of the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. The Board of Directors shall consist of not less than three (3) nor more than fifteen (15) members and shall be divided into three classes, denominated Class I, Class II and Class III, respectively, which classes shall be equal in number or as nearly equal as possible. Subject to the foregoing limitations, the number of Directors of the Corporation shall be fixed by, or in the manner provided in, the By-laws of the Corporation. In the event the total number of directors is not evenly divisible by three (3), then an additional director shall be assigned to Class I if there is one (1) additional director to be assigned among the classes, and an additional director shall be assigned to each of Classes I and II if there are two additional directors to be assigned among the classes. The directors to be elected at each annual meeting of stockholders shall be only the members of the class whose term of office then expires. The term of office of the initial directors in each respective class shall be as follows: (1) directors in Class I shall hold office until the first annual meeting of stockholders, which shall be held in 1996; (2) directors in Class II shall hold office until the annual meeting of stockholders held in 1997; and (3) directors in Class III shall hold office until the annual meeting of stockholders held in 1998. Each director elected at any meeting of stockholders commencing with the 1996 annual meeting shall serve for a term ending on the date of the third annual meeting of stockholders following the meeting at which such director was elected. Elections of directors need not be by written ballot unless the By-laws of the Corporation shall so provide. In the event of any increase or decrease in the authorized number of directors, (1) each director then serving as such shall nevertheless continue as a director of the class of which such director is a member until the expiration of such director's current term, or until such director's earlier death, retirement, resignation, or removal, and (2) the newly created or eliminated directorships resulting from such increase or decrease shall be apportioned by the Board of Directors among the three classes of directors as provided above in this Article V. Notwithstanding any of the foregoing provisions of this Article V, each director shall serve until such director's successor is elected and qualified or until such director's earlier death, retirement, resignation or removal. No director may be removed except for cause and, in addition to the affirmative vote which may be required of the holders of any series of Preferred Stock which may then be outstanding, by the affirmative vote of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of the outstanding shares of Common Stock of the Corporation entitled to vote thereon. Should a vacancy occur or be created, whether arising through death, retirement, 11 resignation or removal of a director or through an increase in the number of directors, such vacancy shall be filled by the vote of a majority of the directors then in office, though less than a quorum, or by the sole remaining director if only one director remains in office. A director so elected to fill a vacancy shall serve for the remainder of the present term of office of the class to which such director was elected. Notwithstanding the foregoing, during any period in which the holders of any one or more series of Preferred Stock, voting as a class, shall be entitled to elect a specified number of directors by reason of dividend arrearages or other contingencies giving them the right to do so, then and during such time as such right continues, (1) the then otherwise authorized number of directors shall be increased by such specified number of directors and the holders of shares of such Preferred Stock, voting as a class, shall be entitled to elect such specified number of directors in accordance with the provisions of such Preferred Stock; (2) each such additional director shall serve until the next annual meeting at which the term of office of his or her class shall expire and until his or her successor shall be elected and shall qualify, or until his or her right to hold such office earlier terminates pursuant to the provisions of such Preferred Stock or series. Whenever the holders of shares of such Preferred Stock are divested of such right to elect directors pursuant to the provisions of such Preferred Stock, the terms of office of all directors elected by the holders of such Preferred Stock pursuant to such provisions, or elected to fill any vacancies resulting from the death, resignation or removal of directors so elected by the holders of such Preferred Stock, shall forthwith terminate and the authorized number of directors shall be reduced accordingly. ARTICLE VI: CERTAIN BUSINESS COMBINATIONS A. In addition to the affirmative vote which may be required of the holders of any series of Preferred Stock which may then be outstanding, the affirmative vote of not less than sixty-six and two-thirds percent (66-2/3%) of the voting power of the outstanding shares of Common Stock of the Corporation, which shall include the affirmative vote of at least fifty-one percent (51%) of the voting power of the outstanding shares of Common Stock held by stockholders other than the "Related Person" (as defined in this Article VI), shall be required for the approval or authorization of any "business combination" (as defined in this Article VI) of the Corporation with any Related Person; provided, however, that such 66-2/3% and 51% voting requirements shall not be applicable if the stockholders are asked to approve or authorize a particular business combination which has been authorized and proposed to the stockholders by action of the Board of Directors of the Corporation by the affirmative vote of a majority of all directors then in office, or if the stockholders are asked to approve or authorize a particular business combination as to which both of the following conditions are satisfied: (1) The aggregate amount of the cash and the fair market value of the consideration other than cash to be received per share by the holders of the Common Stock of the Corporation in such business combination is equal to or exceeds the greatest of (a) the highest price per share (including any brokerage commissions, transfer taxes and soliciting dealer's fees) paid or agreed to be paid by the Related Person to acquire beneficial ownership of any share of Common Stock (with appropriate 12 adjustments for recapitalizations, and for stock splits, stock dividends and like distributions); (b) the highest price at which any share of Common Stock has been listed for sale on any national securities exchange or in any over-the-counter market at any time during the twenty-four (24) month period immediately prior to the taking of such vote; or (c) the per share book value of the Class A Common Stock at the end of the calendar quarter immediately preceding the taking of such vote; and (2) the consideration to be received by holders of Common Stock in such business combination shall be in the same form and of the same kind as the most favorable form and kind of consideration paid by the Related Person in acquiring beneficial ownership of any of shares of Common Stock already held, directly or indirectly, by such Related Person. The determination of a majority of the "Disinterested Directors" (as defined in this Article VI) of the Corporation, made in good faith and based upon information known to them after reasonable inquiry, shall be conclusive as to all facts necessary for compliance with this Article, including, without limitation, (i) whether any person, partnership, corporation or firm is a Related Person or affiliate or associate as defined herein, and (ii) the most favorable form and kind of consideration paid by the Related Person in acquiring beneficial ownership of shares of Common Stock. B. For the purposes of this Article VI: (1) The term "business combination" shall mean (a) any merger or consolidation of the Corporation with or into a Related Person, (b) any sale, lease, exchange, transfer or other disposition, including, without limitation, a mortgage or any other security device, of all or any substantial part of the assets of the Corporation (including, without limitation, any voting securities of a subsidiary) or of a subsidiary, to a Related Person, (c) any merger or consolidation of a Related Person with or into the Corporation or a subsidiary of the Corporation, (d) any sale, lease, exchange, transfer or other disposition of all or any substantial part of the assets of a Related Person to the Corporation or a subsidiary of the Corporation, (e) the reclassification of the shares of stock of the Corporation generally possessing voting rights in elections for directors, the purchase by the Corporation of such shares, or the issuance by the Corporation of shares of any securities convertible thereto or exchangeable therefor which in any such case has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation which are directly or indirectly owned by any Related Person, or (f) any agreement, contract or other arrangement providing for any of the transactions described in this definition of business combination. (2) The term "Related Person" shall mean and include any individual, corporation, partnership or other person or entity which, together with its "affiliates" and "associates," "beneficially" owns (as those terms are defined in the Securities Exchange Act of 1934 and in the rules thereunder), in the aggregate, shares of Common Stock of the Corporation representing five percent (5%) or more of the voting power of the outstanding shares of Common Stock of the Corporation, and any "affiliate" or "associate" of any such individual, corporation, 13 partnership or other person or entity; provided that shares held or over which such entity has the power to vote or otherwise control as a trustee, plan administrator, officer of the Corporation or in a similar capacity under an employee benefit plan of the Corporation or any employee benefit plan of an affiliate of the Corporation shall not be deemed to be beneficially owned for purposes of this definition. (3) The term "substantial part" shall mean more than ten percent (10%) of the total consolidated assets of the Corporation as of the end of its most recent fiscal year ended prior to the time the determination is made. (4) Without limitation, any shares of Common Stock of the Corporation which any Related Person has the right to acquire pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise, shall be deemed beneficially owned by such Related Person. (5) The term "consideration other than cash" shall include, without limitation, outstanding Common Stock of the Corporation retained by its existing stockholders in the event of a business combination with a Related Person in which the Corporation is the surviving corporation. (6) The term "Disinterested Director" means any member of the Board of Directors of the Corporation who is not the Related Person or an affiliate or associate of the Related Person and was a member of the Board prior to the time that the Related Person became the Related Person, and any successor of a Disinterested Director who is not the Related Person or an affiliate or associate of the Related Person and is recommended to succeed a Disinterested Director by a majority of the Disinterested Directors then in office. ARTICLE VII: AMENDMENTS The Corporation reserves the right to amend, alter or repeal any provision contained in this Certificate of Incorporation (including such provisions as may hereafter be added hereto) in the manner now or hereafter prescribed by law, and all rights and privileges conferred by this Certificate of Incorporation upon the stockholders and directors of the Corporation and any other persons are conferred subject to the rights reserved in this Article VII. No amendment of this Certificate of Incorporation shall be effective to amend, alter, repeal or change the effect of any of the provisions of Articles V, VI, VII, VIII or IX hereof, or any of the provisions of Sections 2 or 3 of Article IV hereof, unless such amendment shall have been approved by the affirmative vote of at least sixty-six and two-thirds percent (66-2/3%) of the voting power of the outstanding shares of Common Stock of the Corporation entitled to vote thereon, which shall include the affirmative vote of at least fifty-one percent (51%) of the voting power of the outstanding shares of Common Stock entitled to vote thereon held by stockholders who are not Related Persons (as defined in Article VI hereof); provided, however, that the foregoing voting percentage requirements shall not apply to an amendment if such amendment shall have been 14 proposed and authorized by action of the Board of Directors of the Corporation by the affirmative vote of a majority of the directors then in office. ARTICLE VIII: LIABILITY OF DIRECTORS No director of the Corporation shall be personally liable to the Corporation or to any stockholder of the Corporation for monetary damages for breach of fiduciary duty as a director, except, in addition to any and all other prerequisites to such liability, for liability (1) for any breach of such director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) liability under Section 174 of the General Corporation Law, or (iv) for any transaction from which such director derived an improper personal benefit. Neither the amendment nor the repeal of this Article VIII nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article VIII shall reduce, eliminate, or adversely affect the effect of this Article VIII in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article VIII, would accrue or arise, prior to such amendment, repeal of adoption of an inconsistent provision. ARTICLE IX: DELAWARE BUSINESS COMBINATION ACT Section 203 of the General Corporation Law shall apply to any business combination (as defined in Section 203(c)(3) of the General Corporation Law, or in any successor thereto, however denominated) in which the Corporation shall engage. ARTICLE X: BY-LAWS In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation shall have the power to make, alter, amend, repeal or rescind the By-laws of the Corporation, subject to the right of the stockholders of the Corporation entitled to vote with respect thereto to alter, amend, repeal or rescind any By-law made by the Board of Directors. ARTICLE XI: AMENDED AND RESTATED CERTIFICATE OF INCORPORATION This Amended and Restated Certificate of Incorporation supersedes the existing Certificate of Incorporation of the Corporation in its entirety. EX-4.2 3 EXHIBIT 4.2 1 Exhibit 4.2 BY-LAWS of NCS HEALTHCARE, INC. Incorporated under the Laws of the State of Delaware Adopted February 7, 1996 ARTICLE 1 OFFICES AND RECORDS SECTION 1.1. DELAWARE OFFICE. The principal office of the Corporation in the State of Delaware shall be located in the City of Wilmington, County of New Castle, State of Delaware. SECTION 1.2. OTHER OFFICES. The Corporation may have such other offices, either within or without the State of Delaware, as the Board of Directors may designate or as the business of the Corporation may from time to time require. SECTION 1.3. BOOKS AND RECORDS. The books and records of the Corporation may be kept outside the State of Delaware at such place or places as may from time to time be designated by the Board of Directors. ARTICLE 2 STOCKHOLDERS SECTION 2.1. ANNUAL MEETING. The annual meeting of the stockholders of the Corporation shall be held on such date and at such place and time as may be fixed by resolution of the Board of Directors. SECTION 2.2. SPECIAL MEETING. Subject to the rights of the holders of any series of stock having a preference over the common stock of the Corporation as to dividends or upon liquidation ("Preferred Stock") with respect to such series of Preferred Stock, special meetings of the stockholders may be called only by the Chairman of the Board, or by the President, or by the Board of Directors pursuant to a resolution adopted by a majority of the total number of directors which the Corporation would have if there were no vacancies (the "Whole Board"). SECTION 2.3. PLACE OF MEETING. The Board of Directors, the Chairman of the Board or the President, as the case may be, may designate the place of meeting for any annual meeting or for any special meeting of the stockholders called by the Board of Directors, the Chairman of the Board or the President. If no designation is so made, the place of meeting shall be the principal office of the Corporation. SECTION 2.4. NOTICE OF MEETING. Written or printed notice, stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called, shall be delivered by the Corporation not less than ten (10) days nor more than sixty (60) days before the date of the meeting, either personally or by mail, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with postage thereon prepaid, addressed to the stockholder at his address as it appears on the stock transfer books of the Corporation. Such further notice shall be given as may be required by law. Only such business shall be conducted at a special meeting of stockholders as 2 shall have been brought before the meeting pursuant to the Corporation's notice of meeting. Meetings may be held without notice if all stockholders entitled to vote are present, or if notice is waived by those not present in accordance with Section 6.4 of these By-Laws. Any previously scheduled meeting of the stockholders may be postponed, and (unless the Certificate of Incorporation otherwise provides) any special meeting of the stockholders may be cancelled, by resolution of the Board of Directors upon public notice given prior to the date previously scheduled for such meeting of stockholders. SECTION 2.5. QUORUM AND ADJOURNMENT. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the outstanding shares of the Corporation entitled to vote generally in the election of directors (the "Voting Stock"), represented in person or by proxy, shall constitute a quorum at a meeting of stockholders, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of a majority of the shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. The Chairman of the meeting or a majority of the shares so represented may adjourn the meeting from time to time, whether or not there is such a quorum. No notice of the time and place of adjourned meetings need be given except as required by law. The stockholders present at a duly called meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. SECTION 2.6. PROXIES. At all meetings of stockholders, a stockholder may vote by proxy executed in writing (or in such manner prescribed by the General Corporation Law of the State of Delaware (the "General Corporation Law") by the stockholder, or by his duly authorized attorney in fact. SECTION 2.7. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS. (A) ANNUAL MEETINGS OF STOCKHOLDERS. (1) Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders (a) pursuant to the Corporation's notice of meeting, (b) by or at the direction of the Board of Directors, or (c) by any stockholder of the Corporation who was a stockholder of record at the time of giving of notice provided for in this By-Law, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this By-Law. (2) For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this By-Law, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and such other business must otherwise be a proper matter for stockholder action. To be timely, a stockholder's notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 60th day nor earlier than the close of business on the 90th day prior to the first anniversary of the preceding year's annual meeting; PROVIDED, HOWEVER, that in the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 90th day prior to such annual meeting and not later than the close of business on the later of the 60th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made by the Corporation. In no event shall the public announcement of an adjournment of an annual meeting commence a new time period for the giving of a stockholder's notice as described above. Such stockholder's notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or re-election as a director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act 3 of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder (including such person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation's books, and of such beneficial owner and (ii) the class and number of shares of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner. (3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this By-Law to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least 70 days prior to the first anniversary of the preceding year's annual meeting, a stockholder's notice required by this By-Law shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation. (B) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation's notice of meeting (a) by or at the direction of the Board of Directors or (b) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice provided for in this By-Law, who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this By-Law. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation's notice of meeting, if the stockholder's notice required by paragraph (A)(2) of this By-Law shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the 90th day prior to such special meeting and not later than the close of business on the later of the 60th day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment of a special meeting commence a new time period for the giving of a stockholder's notice as described above. (C) GENERAL. (1) Only such persons who are nominated in accordance with the procedures set forth in this By-Law shall be eligible to serve as directors, and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this By-Law. Except as otherwise provided by law, the Chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this By-Law and, if any proposed nomination or business is not in compliance with this By-Law, to declare that such defective proposal or nomination shall be disregarded. (2) For purposes of this By-Law, "public announcement" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the 4 Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. (3) Notwithstanding the foregoing provisions of this By-Law, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this By-Law. Nothing in this By-Law shall be deemed to affect any rights (i) of stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of Preferred Stock to elect directors under specified circumstances. SECTION 2.8. PROCEDURE FOR ELECTION OF DIRECTORS; REQUIRED VOTE. Election of directors at all meetings of the stockholders at which directors are to be elected shall be by ballot, and, subject to the rights of the holders of any series of Preferred Stock to elect directors under specified circumstances, a plurality of the votes cast thereat shall elect directors. Except as otherwise provided by law, the Certificate of Incorporation, or these By-Laws, in all matters other than the election of directors, the affirmative vote of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the matter shall be the act of the stockholders. SECTION 2.9. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS. The Board of Directors by resolution shall appoint one or more inspectors, which inspector or inspectors may include individuals who serve the Corporation in other capacities, including, without limitation, as officers, employees, agents or representatives, to act at the meetings of stockholders and make a written report thereof. One or more persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act or is able to act at a meeting of stockholders, the Chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by law. The Chairman of the meeting shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting. SECTION 2.10. NO STOCKHOLDER ACTION BY WRITTEN CONSENT. Subject to the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders. ARTICLE 3 BOARD OF DIRECTORS SECTION 3.1. GENERAL POWERS. The business and affairs of the Corporation shall be managed under the direction of the Board of Directors. In addition to the powers and authorities by these By-Laws expressly conferred upon them, the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws required to be exercised or done by the stockholders. SECTION 3.2. NUMBER; TENURE AND QUALIFICATIONS. The number of directors constituting the Whole Board shall be fixed at seven (7) as of the date of the adoption of these By-Laws. Thereafter, subject to the rights of the holders of any series of Preferred Stock to elect directors under specified circumstances, and subject to such limitations as may be specified in these 5 By-Laws or the Certificate of Incorporation or required by the General Corporation Law, the number of directors constituting the Whole Board may be fixed from time to time exclusively pursuant to a resolution adopted by a majority of the Whole Board. Each director shall be a stockholder of the Corporation. The directors, other than those who may be elected by the holders of any series of Preferred Stock under specified circumstances, shall be divided, with respect to the time for which they severally hold office, into three classes, denominated Class I, Class II and Class III, respectively, which classes shall be equal in number or as nearly equal as possible. In the event the total number of directors is not evenly divisible by three (3), then an additional director shall be assigned to Class I if there is one (1) additional director to be assigned among the classes, and an additional director shall be assigned to each of Classes I and II if there are two additional directors to be assigned among the classes. The directors to be elected at each annual meeting of stockholders shall be only the members of the class whose term of office then expires. The term of office of the initial directors in each respective class shall be as follows: (1) directors in Class I shall hold office until the annual meeting of stockholders held in 1996; (2) directors in Class II shall hold office until the annual meeting of stockholders held in 1997; and (3) directors in Class III shall hold office until the annual meeting of stockholders held in 1998. At each annual meeting of stockholders, commencing with the 1996 annual meeting, (i) directors elected to succeed those directors whose terms then expire shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election, with each director to hold office until his or her successor shall have been duly elected and qualified, and (ii) if authorized by a resolution of the Board of Directors, directors may be elected to fill any vacancy on the Board of Directors, regardless of how such vacancy shall have been created. SECTION 3.3. REGULAR MEETINGS. A regular meeting of the Board of Directors shall be held without other notice than this By-Law immediately after, and at the same place as, the Annual Meeting of Stockholders. The Board of Directors may, by resolution, provide the time and place for the holding of additional regular meetings without other notice than such resolution. SECTION 3.4. SPECIAL MEETINGS. Special meetings of the Board of Directors shall be called at the request of the Chairman of the Board, the President or a majority of the Board of Directors then in office. The person or persons authorized to call special meetings of the Board of Directors may fix the place and time of the meetings. SECTION 3.5. NOTICE. Notice of any special meeting of directors shall be given to each director at his business or residence in writing by hand delivery, first-class or overnight mail or courier service, telegram or facsimile transmission, or orally by telephone. If mailed by first-class mail, such notice shall be deemed adequately delivered when deposited in the United States mails so addressed, with postage thereon prepaid, at least five (5) days before such meeting. If by telegram, overnight mail or courier service, such notice shall be deemed adequately delivered when the telegram is delivered to the telegraph company or the notice is delivered to the overnight mail or courier service company at least twenty-four (24) hours before such meeting. If by facsimile transmission, such notice shall be deemed adequately delivered when the notice is transmitted at least twelve (12) hours before such meeting. If by telephone or by hand delivery, the notice shall be given at least twelve (12) hours prior to the time set for the meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice of such meeting, except for amendments to these By-Laws, as provided under Article 11. A meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Section 6.4 of these By-Laws. SECTION 3.6. ACTION BY CONSENT OF BOARD OF DIRECTORS. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board or such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board 6 or such committee. SECTION 3.7. CONFERENCE TELEPHONE MEETINGS. Members of the Board of Directors, or any committee thereof, may participate in a meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting. SECTION 3.8. QUORUM. Except as otherwise provided by the Certificate of Incorporation or these By-Laws, a whole number of directors equal to at least a majority of the Whole Board shall constitute a quorum for the transaction of business, but if at any meeting of the Board of Directors there shall be less than a quorum present, a majority of the directors present may adjourn the meeting from time to time without further notice. Except as otherwise provided by the Certificate of Incorporation or these By-Laws, the act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. The directors present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough directors to leave less than a quorum. SECTION 3.9. VACANCIES. Subject to applicable law and the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, and unless the Board of Directors otherwise determines, vacancies resulting from death, resignation, retirement, disqualification, removal from office or other cause, and newly created directorships resulting from any increase in the authorized number of directors, may be filled only by the affirmative vote of a majority of the remaining directors, though less than a quorum of the Board of Directors, and directors so chosen shall hold office for a term expiring at the annual meeting of stockholders at which the term of office of the class to which they have been elected expires and until such director's successor shall have been duly elected and qualified. Except as otherwise provided in the Certificate of Incorporation, no decrease in the number of authorized directors constituting the Whole Board shall shorten the term of any incumbent director. SECTION 3.10. EXECUTIVE AND OTHER COMMITTEES. The Board of Directors may, by resolution adopted by a majority of the Whole Board, designate an Executive Committee to exercise, subject to applicable provisions of law, all the powers of the Board in the management of the business and affairs of the Corporation when the Board is not in session, including without limitation the power to declare dividends, to authorize the issuance of the Corporation's capital stock and to adopt a certificate of ownership and merger pursuant to Section 253 of the General Corporation Law, and may, by resolution similarly adopted, designate one or more other committees. The Executive Committee and each such other committee shall consist of two or more directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, other than the Executive Committee (the powers of which are expressly provided for herein), may to the extent permitted by law exercise such powers and shall have such responsibilities as shall be specified in the designating resolution. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not constituting a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Each committee shall keep written minutes of its proceedings and shall report such proceedings to the Board when required. A majority of any committee may determine its action and fix the time and place of its meetings, unless the Board shall otherwise provide. Notice of such meetings shall be given to each member of the committee in the manner provided for in Section 3.5 of these By-Laws. The Board shall have power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee. Nothing herein shall be deemed to prevent the Board from appointing one or 7 more committees consisting in whole or in part of persons who are not directors of the Corporation; PROVIDED, HOWEVER, that no such committee shall have or may exercise any authority of the Board. SECTION 3.11. REMOVAL. Subject to the rights of the holders of any series of Preferred Stock with respect to such series of Preferred Stock, any director, or the entire Board of Directors, may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66_%) of the voting power of all of the then-outstanding shares of Voting Stock, voting together as a single class. SECTION 3.12. RECORDS. The Board of Directors shall cause to be kept a record containing the minutes of the proceedings of the meetings of the Board and of the stockholders, appropriate stock books and registers and such books of records and accounts as may be necessary for the proper conduct of the business of the Corporation. SECTION 3.13. COMPENSATION. Directors, as such, shall not receive any stated salary for their services, but by resolution a fixed sum and expenses of attendance, if any, may be allowed for attendance at any meeting of the Board of Directors or of any committee thereof. Nothing contained herein shall be construed so as to preclude any director from serving the Corporation in any other capacity, or from serving any of the Corporation's stockholders, subsidiaries or affiliated corporations in any capacity, and receiving compensation therefor. ARTICLE 4 OFFICERS SECTION 4.1. OFFICERS. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, a Secretary, a Treasurer, and, if the Board of Directors shall so determine, or as may be deemed necessary from time to time, a Vice Chairman of the Board, one or more Vice Presidents and other officers and assistant officers. Any number of offices of the Corporation may be held simultaneously by the same person. SECTION 4.2. ELECTION OF OFFICERS. Each officer of the Corporation shall be elected by the Board of Directors and shall hold office at the pleasure of the Board of Directors until his successor has been elected or until his earlier resignation or removal. SECTION 4.3. RESIGNATION. Any officer may resign at any time by giving written notice of his resignation to the Corporation. Any such resignation shall take effect immediately upon receipt of such notice or at such other time specified in such notice. Unless otherwise specified in such notice, the acceptance of such resignation by the Corporation shall not be necessary to make such resignation effective. SECTION 4.4. REMOVAL. Any officer may be removed at any time, either with or without cause, by action of the Board of Directors. Such removal shall be without prejudice to the contractual rights, if any, of the person so removed. SECTION 4.5. VACANCIES. A newly created office and a vacancy in any office because of death, resignation, or removal or any other cause shall be filled by the Board of Directors. SECTION 4.6. POWERS AND DUTIES. All officers, as between themselves and the Corporation, shall have such authority and perform such duties as are customarily incident to their respective offices, and as may be specified from time to time by the Board of Directors, regardless of whether such authority and duties are customarily incident to such office. In the absence of any officer of the Corporation, or for any other reason the Board of Directors may deem sufficient, the 8 Board of Directors may delegate for the time being the powers or duties of such officer, or any of them, to any other officer or to any Director. The Board of Directors may from time to time delegate to any officer the authority to appoint and remove subordinate officers and to prescribe their authority and duties. SECTION 4.7. COMPENSATION. The compensation of the officers shall be fixed from time to time by the Board of Directors or, if delegated by the Board, by the President or the Chairman of the Board. Any such decision by the President or Chairman of the Board shall be final unless expressly overruled or modified by action of the Board of Directors, in which event such action of the Board of Directors shall be conclusive of the matter. Nothing contained herein shall preclude any officer from serving the Corporation in any other capacity, including that of Director, or from serving any of its stockholders, subsidiaries or affiliated corporations in any capacity, and receiving a proper compensation therefor. ARTICLE 5 STOCK CERTIFICATES AND TRANSFERS SECTION 5.1. STOCK CERTIFICATES AND TRANSFERS. The interest of each stockholder of the Corporation shall be evidenced by certificates for shares of stock in such form as the appropriate officers of the Corporation may from time to time prescribe. The shares of the stock of the Corporation shall be transferred on the books of the Corporation by the holder thereof in person or by his attorney, upon surrender for cancellation of certificates for at least the same number of shares, with an assignment and power of transfer endorsed thereon or attached thereto, duly executed, with such proof of the authenticity of the signature as the Corporation or its agents may reasonably require, and together with payment of any applicable taxes. The certificates for shares of stock shall be signed by or in the name of the Corporation by the President, a Vice President or the Chairman of the Board, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, or in such other manner as the Board of Directors may by resolution prescribe, which resolution may permit any or all of the signatures on such certificates to be in facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. SECTION 5.2. LOST, STOLEN OR DESTROYED CERTIFICATES. No certificate for shares of stock in the Corporation shall be issued in place of any certificate alleged to have been lost, destroyed or stolen, except on production of such evidence of such loss, destruction or theft and on delivery to the Corporation of a bond of indemnity in such amount, upon such terms and secured by such surety, as the Board of Directors or any financial officer may in its or his discretion require. SECTION 5.3. PROTECTION OF CORPORATION. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares of stock to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of such shares, and shall not be bound to recognize any equitable or other claim to or interest in such shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware. 9 ARTICLE 6 MISCELLANEOUS PROVISIONS SECTION 6.1. FISCAL YEAR. The fiscal year of the Corporation shall be such period as the Board of Directors may designate from time to time. SECTION 6.2. DIVIDENDS. The Board of Directors may from time to time declare, and the Corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and the Certificate of Incorporation. SECTION 6.3. SEAL. The Corporation may adopt a corporate seal which, if adopted, shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. SECTION 6.4. WAIVER OF NOTICE. Whenever any notice is required to be given to any stockholder or director of the Corporation under the provisions of the General Corporation Law, the Certificate of Incorporation or these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the stockholders or the Board of Directors or committee thereof need be specified in any waiver of notice of such meeting. SECTION 6.5. AUDITS. The accounts, books and records of the Corporation shall be audited upon the conclusion of each fiscal year by an independent certified public accountant selected by the Board of Directors, and it shall be the duty of the Board of Directors to cause such audit to be performed annually. SECTION 6.6. RESIGNATIONS. Any director or any officer, whether elected or appointed, may resign at any time by giving written notice of such resignation to the Chairman of the Board, the President, or the Secretary, and such resignation shall be deemed to be effective as of the close of business on the date said notice is received by the Chairman of the Board, the President, or the Secretary, or at such later time as is specified therein. No formal action shall be required of the Board of Directors or the stockholders to make any such resignation effective. ARTICLE 7 INDEMNIFICATION AND INSURANCE SECTION 7.1. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Corporation shall indemnify, to the fullest extent now or hereafter permitted by law, any director or officer of the Corporation who was or is a party or is threatened to be made a party to, or is involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereafter, a "proceeding"), by reason of the fact that such person, or a person of whom he or she is the legal representative, is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including service with respect to employee benefit plans), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, partner, trustee, employee or agent or in any other capacity while serving as a director, officer, partner, trustee, employee or agent, against all expense, liability and loss (including attorneys' fees, judgments, fines, excise taxes or penalties and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by such person in connection therewith. Such indemnification shall continue as to a person who has ceased to be a director, 10 officer, partner, trustee, employee or agent and shall inure to the benefit of such person's heirs, executors and administrators; PROVIDED, HOWEVER, that, except as provided in Section 7.4, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors. SECTION 7.2. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may indemnify any employee or agent of the Corporation who is not a director or officer of the Corporation to an extent greater than that required by law only if and to the extent that the Board of Directors may, from time to time in their discretion, so determine. SECTION 7.3. ADVANCEMENT OF EXPENSES. Expenses, including attorneys' fees, incurred by a director or officer of the Corporation in defending any proceeding referred to in Section 7.1, shall be paid by the Corporation, in advance of the final disposition of such proceeding, upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that such officer or director is not entitled to be indemnified by the Corporation as authorized in this Article 7, which undertaking may be secured or unsecured, in the discretion of the Board of Directors. SECTION 7.4. PROCEDURES AND PRESUMPTIONS UNDER THIS ARTICLE. If a claim under Section 7.1 is not paid in full by the Corporation within thirty (30) days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because the claimant has met the applicable standard of conduct set forth in the General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. SECTION 7.5. INDEMNIFICATION PROVIDED IN THIS ARTICLE NOT EXCLUSIVE. The indemnification and advancement of expenses provided under this Article 7 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any law, the Certificate of Incorporation, these By-Laws, any agreement, vote of stockholders or of disinterested directors or otherwise, both as to action in their official capacity and as to action in another capacity while holding such office. Without limiting the generality or effect of the foregoing, the Corporation may enter into one or more agreements with any person which provide for indemnification greater or different than or in addition to the indemnification provided for in this Article 7. SECTION 7.6. ARTICLE DEEMED A CONTRACT. This Article 7 shall be deemed to be a contract between the Corporation and each director or officer of the Corporation, or individual who is or was serving at the request of the Corporation as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, who serves in such capacity at any time while this Article 7 is in effect, and no repeal, amendment or other modification of this Article 7 shall affect any rights or obligations then existing with respect to any 11 state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter brought or threatened based in whole or in part upon any such state of facts. SECTION 7.7. SAVINGS CLAUSE. If this Article 7 or any portion thereof shall be invalidated or found unenforceable on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director, officer, employee or agent of the Corporation against expenses (including attorneys' fees), judgments, fines, excise taxes, penalties and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, to the fullest extent permitted by any applicable portion of this Article 7 that shall not have been invalidated or found unenforceable, or by any other applicable law. SECTION 7.8. INSURANCE. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or individual serving at the request of the Corporation as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law. ARTICLE 8 CONTRACTS, PROXIES, ETC. SECTION 8.1. CONTRACTS. Except as otherwise required by law, the Certificate of Incorporation or these By-Laws, any contracts or other instruments may be executed and delivered in the name and on the behalf of the Corporation by such officer or officers of the Corporation as the Board of Directors may from time to time direct. Such authority may be general or confined to specific instances as the Board may determine. The Chairman of the Board, the President or any Vice President may execute bonds, contracts, deeds, leases and other instruments to be made or executed for or on behalf of the Corporation. Subject to any restrictions imposed by the Board of Directors or the Chairman of the Board, the President or any Vice President of the Corporation may delegate contractual powers to others under his jurisdiction, it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power. SECTION 8.2. PROXIES. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairman of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the Corporation, in the name and on behalf of the Corporation, to cast the votes which the Corporation may be entitled to cast as the holder of stock or other securities in any other corporation, any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other corporation, or to consent in writing, in the name of the Corporation as such holder, to any action by such other corporation, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal (if any) or otherwise, all such written proxies or other instruments as he may deem necessary or proper in the premises. 12 ARTICLE 9 EMERGENCY BY-LAWS The Board of Directors may adopt, either before or during an emergency, as that term is defined by the General Corporation Law, any emergency by-laws permitted by the General Corporation Law which shall be operative only during such emergency. In the event the Board of Directors does not adopt any such emergency by-laws, the special rules provided in the General Corporation Law shall be applicable during an emergency as therein defined. ARTICLE 10 SECTION HEADINGS The article and section headings contained in these By-Laws are included for purposes of reference only and shall not be construed to be a part of or affect in any way the meaning or interpretation of these By-Laws. ARTICLE 11 AMENDMENTS Subject to the following sentence, these By-Laws may be altered, amended, or repealed at any meeting of the Board of Directors by the affirmative vote of a majority of the Whole Board, or at any meeting of the stockholders by the affirmative vote of the holders of at least a majority of the voting power of all of the then-outstanding shares of Voting Stock, voting together as a single class, provided that, in either case, notice of the proposed change was given in the notice of such meeting and, in the case of a meeting of the Board of Directors, in a notice given not less than two days prior to the meeting. Notwithstanding the foregoing sentence, Article 7 and Sections 2.10, 3.2, 3.9 and 3.11 and this second sentence of this Article 11 of these By-Laws may be altered, amended or repealed or otherwise modified, and any other provision inconsistent therewith may be adopted, only at a meeting of the stockholders by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66_%) of the voting power of all of the then-outstanding shares of Voting Stock, voting together as a single class. 13 CERTIFICATE OF AMENDED BY-LAWS OF NCS HEALTHCARE, INC. Kevin B. Shaw, President and Chief Executive Officer of NCS Healthcare, Inc. (the "Company"), a Delaware corporation, does hereby certify that the following amendment to the By-Laws of the Company was adopted by the Board of Directors of the Company on November 11, 1996: RESOLVED, that Section 2.5 and 2.8 of the By-Laws of the Company adopted February 7, 1996, are hereby amended so that henceforth they shall read in their entirety as follows, respectively: SECTION 2.5 Quorum and Adjournment. Except as otherwise provided by law or by the Certificate of Incorporation, the holders of a majority of the voting power of the outstanding shares of the Corporation entitled to vote generally in the election of directors (the "Voting Stock"), represented in person or by proxy, shall constitute a quorum at a meeting of stockholders, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of a majority of the voting power of the shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. The Chairman of the meeting or a majority of the voting power of the shares so represented may adjourn the meeting from time to time, whether or not there is such a quorum. No notice of the time and place of adjourned meetings need be given except as required by law. The stockholders present at a duly called meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. * * * SECTION 2.8 Procedure for Election of Directors; Required Vote. Election of directors at all meetings of the stockholders at which directors are to be elected shall be by ballot, and, subject to the rights of the holders of any series of Preferred Stock to elect directors under specified circumstances, a plurality of the votes cast thereat shall elect directors. Except as otherwise provided by law, the Certificate of Incorporation, or these By-Laws, in all matters other than the election of directors, the affirmative vote of a majority of the voting power of the shares present in person or represented by proxy at a meeting and entitled to vote on the matter shall be the act of the stockholders. In WITNESS WHEREOF, said Kevin B. Shaw, President and Chief Executive Officer of NCS HealthCare, Inc., acting for and on behalf of said Company, has hereunto subscribed his name this 3rd day of April, 1998. /s/ Kevin B. Shaw ----------------------------- Kevin B. Shaw, President and Chief Executive Officer EX-5.1 4 EXHIBIT 5.1 1 EXHIBIT 5.1 CALFEE, HALTER & GRISWOLD LLP ATTORNEYS AT LAW ------------------------------------------- 1400 McDonald Investment Center 800 Superior Avenue Cleveland, Ohio 44114-2688 216/622-8200 Fax 216/241-0816 April 3, 1998 NCS HealthCare, Inc. 3201 Enterprise Parkway Suite 220 Beachwood, Ohio 44122 We are acting as counsel for NCS HealthCare, Inc., a Delaware corporation (the "Company"), with respect to the 883,528 shares of the Company's Class A Common Stock, par value $.01 per share (the "Plan Shares"), to be offered and sold from time to time pursuant to the Aberdeen Group, Inc. 1995 Amended and Restated Employee Stock Purchase and Option Plan, the NCS HealthCare, Inc. 1996 Long Term Incentive Plan, the Amended and Restated Stock Option Agreement by and between Aberdeen Group, Inc. and Richard L. Osborne, dated as of December 7, 1995 and the Amended and Restated Stock Option Agreement by and between Aberdeen Group, Inc. and Jeffrey R. Steinhilber, dated as of December 7, 1995 (collectively, the "Plans"). As counsel for the Company, we have assisted in the preparation of a Registration Statement on Form S-8 (the "Registration Statement") to be filed by the Company with the Securities and Exchange Commission to effect the registration of the Plan Shares under the Securities Act of 1933, as amended. We have examined such documents, records and matters of law as we have deemed necessary for purposes of this opinion, and based thereon we are of the opinion that the Plan Shares to be offered and sold from time to time in the manner contemplated by the Plans and the Registration Statement will be duly authorized, validly issued, fully paid and nonassessable. This opinion is limited to the General Corporation Law of the State of Delaware, and we express no opinion as to the effect of any other law on the opinions set forth herein. This opinion is intended solely for your use in connection with the filing of the Registration Statement with respect to the Plan Shares, and may not be reproduced, filed publicly or relied upon by any other person for any purpose without the express written consent of the undersigned. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. Respectfully submitted, CALFEE, HALTER & GRISWOLD LLP EX-15.1 5 EXHIBIT 15.1 1 EXHIBIT 15.1 April 2, 1998 The Board of Directors and Stockholders NCS HealthCare, Inc. and Subsidiaries We are aware of the incorporation by reference in the Registration Statement (Form S-8 No. 333-____) of NCS HealthCare, Inc. for the registration of 883,528 shares of its Class A Common Stock of our reports dated October 28, 1997 and January 28, 1998 relating to the unaudited condensed consolidated interim financial statements of NCS HealthCare, Inc. and subsidiaries that are included in its Forms 10-Q for the quarters ended September 30, 1997 and December 31, 1997. Ernst & Young LLP EX-23.1 6 EXHIBIT 23.1 1 EXHIBIT 23.1 CONSENT OF COUNSEL The consent of Calfee, Halter & Griswold LLP is contained in their opinion filed as Exhibit 5.1 to this Registration Statement. EX-23.2 7 EXHIBIT 23.2 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in this Registration Statement Form S-8 of NCS HealthCare, Inc. pertaining to the registration of 883,528 shares of its Class A Common Stock of our report dated August 1, 1997, with respect to the consolidated financial statements of NCS HealthCare, Inc. and subsidiaries included in its Annual Report (Form 10-K) for the year ended June 30, 1997 filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Cleveland, Ohio April 1, 1998 EX-24.1 8 EXHIBIT 24.1 1 EXHIBIT 24.1 NCS HEALTHCARE, INC. CERTIFIED RESOLUTION I, Jeffrey R. Steinhilber, Senior Vice President of NCS HealthCare, Inc., a Delaware corporation (the "Company"), do hereby certify that the following is a true and correct copy of the resolutions adopted by the Board of Directors as of March 31, 1998, and that the same have not been changed and remain in full force and effect. RESOLVED FURTHER, that Jon H. Outcalt, Kevin B. Shaw, Gerald D. Stethem, Thomas F. McKee and John J. Jenkins, be, and each of them hereby is, appointed as the attorney of the Company with full power of substitution and resubstitution for and in the name, place and stead of the Company to sign, attest and file a Registration Statement on Form S-8, or any other appropriate form that may be used from time to time, with respect to the issue and/or sale of the Plan Shares, and any and all amendments, post-effective amendments and exhibits to such Registration Statement and any and all applications or other documents to be filed with the Commission, the National Association of Securities Dealers or any automated quotation system of a registered securities association pertaining to the quotation thereon of the Plan Shares covered by such Registration Statement or pertaining to such registration and any and all applications or other documents to be filed with any governmental or private agency or official relative to the issuance of said Plan Shares, with full power and authority to do and perform any and all acts and things whatsoever requisite and necessary to be done in the premises, hereby ratifying and approving the acts of such attorneys or any such substitute or substitutes and, without implied limitation, including in the above authority to do the foregoing on behalf and in the name of any duly authorized officer of the Company; and that the Authorized Officers be, and each of them hereby is, authorized and directed for and on behalf of the Company to execute a Power of Attorney evidencing the foregoing appointment. /s/ Jeffrey R. Steinhilber ------------------------------- Jeffrey R. Steinhilber Senior Vice President Dated: April 3, 1998 -----END PRIVACY-ENHANCED MESSAGE-----