-----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, GbS6m6rtoYNPwGp7axZMl01cSUR8V4moU2HQ3THM0zXRLCgkI+Qtjb29uKxFy6Oa 8SEk9Gk8KDevWMYm4pOUNQ== 0000950152-98-007626.txt : 19980916 0000950152-98-007626.hdr.sgml : 19980916 ACCESSION NUMBER: 0000950152-98-007626 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980915 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-3 SEC ACT: SEC FILE NUMBER: 333-63437 FILM NUMBER: 98709893 BUSINESS ADDRESS: STREET 1: 3201 ENTERPRISE PKWY STREET 2: STE 2200 CITY: BEACHWOOD STATE: OH ZIP: 44122 BUSINESS PHONE: 2165143350 MAIL ADDRESS: STREET 1: 1400 MCDONALD INVESTMENT CENTER STREET 2: 800 SUPERIOR AVE CITY: CLEVELAND STATE: OH ZIP: 44114 S-3 1 NCS HEALTHCARE, INC. S-3 1 As filed with the Securities and Exchange Commission on September 15, 1998 Registration No. 333- ----------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 ---------------------- FORM S-3 REGISTRATION STATEMENT Under The Securities Act of 1933 ---------------------- NCS HealthCare, Inc. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware - -------------------------------------------------------------------------------- (State or other jurisdiction of incorporation or organization) 34-1816187 - -------------------------------------------------------------------------------- (I.R.S. Employer Identification No.) 3201 Enterprise Parkway, Suite 220, Beachwood, Ohio 44122, telephone (216) 514-3350 - -------------------------------------------------------------------------------- (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) Copy to: Jon H. Outcalt Thomas F. McKee NCS HealthCare, Inc. Calfee, Halter & Griswold LLP 3201 Enterprise Parkway, Suite 220 1400 McDonald Investment Center Beachwood, Ohio 44122 800 Superior Avenue (216) 514-3350 Cleveland, Ohio 44114 (216) 622-8200 (Name, address, including zip code, and telephone number, including area code, of agent for service) APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of the Registration Statement and after compliance with applicable state and federal laws. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for he same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] CALCULATION OF REGISTRATION FEE
======================================================================================================================== Title of each class of Amount to be Proposed maximum Proposed maximum Amount of securities registered aggregate price per aggregate offering price registration fee to be registered unit (1) - ------------------------------------------------------------------------------------------------------------------------ Class A Common Stock, $.01 par value........................... 2,141,418 $17.0625 $36,537,945 $10,779 ======================================================================================================================== (1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c), using the average of the bid and asked price of the Class A Common Stock of the Registrant as reported on the Nasdaq National Market on September 11, 1998.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY DETERMINE. 2 PROSPECTUS - ---------- NCS HEALTHCARE, INC. 2,141,418 Shares CLASS A COMMON STOCK ($.01 par value) This Prospectus relates to the offering for resale of 2,141,418 shares of Class A Common Stock, par value $.01 per share (the "Class A Common Stock"), of NCS HealthCare, Inc., a Delaware corporation ("NCS" or the "Company"), by the persons named herein (the "Selling Stockholders") who have received and by persons who will receive shares of Class A Common Stock in connection with the acquisition by the Company, or certain of its wholly owned subsidiaries, of the capital stock or assets of various institutional pharmacies or entities providing related services in business combination transactions. Such persons who will receive shares of Class A Common Stock will be named in supplements to this prospectus to be filed by the Company. All of the Class A Common Stock being registered may be offered and sold from time to time by the Selling Stockholders of the Company named herein under the caption "Selling Stockholders" in transactions on the Nasdaq National Market or in privately negotiated transactions, at fixed prices that may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. See "Selling Stockholders" and "Manner of Offering." The Company will not receive any proceeds from the sale of the Class A Common Stock by the Selling Stockholders. The Company's Class A Common Stock is traded on the Nasdaq National Market under the symbol "NCSS." On September 11, 1998, the last reported sale price for the Class A Common Stock was $17.00 per share. ---------------------------------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ---------------------------------------- No person has been authorized to give any information or to make any representations other than those contained in this Prospectus (including the material incorporated herein by reference) and, if given or made, such information or representations must not be relied upon as having been authorized by the Company or by any other person deemed to be an underwriter. This Prospectus does not constitute an offer to sell or a solicitation of an offer to buy the Class A Common Stock covered by this Prospectus by anyone in any state in which such offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so to anyone to whom it is unlawful to make such offer or solicitation. Neither the delivery of this Prospectus nor any sale made hereunder shall under any circumstances create an implication that there has been no change in the affairs of the Company since the date hereof. ---------------------------------------- The date of this Prospectus is September __, 1998 3 THE COMPANY The Company has its principal executive offices at 3201 Enterprise Parkway, Suite 220, Beachwood, Ohio 44122, and its telephone number is (216) 514-3350. As used in this Prospectus, "NCS" and the "Company" shall refer to NCS HealthCare, Inc. and its consolidated subsidiaries, unless the context indicates otherwise. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance therewith, files reports and other information with the Securities and Exchange Commission (the "Commission"), which may be inspected and copied at the public reference facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington, DC 20549. Such reports, proxy statements and other information filed by the Company are also available for inspection and copying at the Commission's Regional Offices located at: Northwest Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and at Seven World Trade Center, 13th Floor, New York, New York 10048-1102. Such material may also be accessed electronically by means of the Commission's home page on the Internet at http://www.sec.gov. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The Company will provide, without charge, to each person to whom this Prospectus is delivered, upon the written or oral request of such person, a copy of any and all of the information that has been incorporated by reference in this Prospectus (not including exhibits to the information that is incorporated by reference unless such exhibits are specifically incorporated by reference into the information that the Prospectus incorporates). Such request should be directed to Kristen H. Schulz, Director of Investor Relations, NCS HealthCare, Inc., 3201 Enterprise Parkway, Suite 220, Beachwood, Ohio 44122, telephone (216) 514-3350. The Company hereby incorporates the following documents by reference in this Prospectus: (a) the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1997; (b) the Company's Quarterly Reports on Form 10-Q for the periods ended September 30, 1997, December 31, 1997 and March 31, 1998; (c) the Company's Current Reports on Form 8-K dated January 6, 1998, January 30, 1998 (as amended on April 17, 1998), April 10, 1998 and June 1, 1998; and (d) the Company's Form 8-A Registration Statement. All documents subsequently filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of filing of such documents. DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS Certain statements contained in or incorporated by reference into this Prospectus, including, but not limited to, those regarding the Company's financial position, business strategy, acquisition strategy and other plans and objectives for future operations and any other statements that are not historical facts constitute "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995. Such forward-looking statements involve known and unknown risks, uncertainties and other important factors that could cause the actual results, performance or achievements of the Company, or industry results, to differ materially from any future results, performance or achievements expressed or implied by such forward-looking statements. Although the Company believes that the expectations reflected in these forward-looking statements are reasonable, there can be no assurance that the actual results or developments anticipated by the Company will be realized or, even if substantially realized, that they will have the expected effects on its business or operations. Among the factors that could cause actual results to differ materially from the Company's expectations include the availability and cost of attractive acquisition candidates, continuation of various trends in the long-term care market (including the trend toward consolidation), competition among providers of long-term care pharmacy services, the availability of capital for acquisitions and capital requirements, changes in regulatory requirements and reform of the health care delivery system and other factors. 1 4 SELLING STOCKHOLDERS Of the 2,141,418 shares of Class A Common Stock covered by this Prospectus, 141,418 shares are being offered and sold by the Selling Stockholders named below. Unregistered shares of Class B Common Stock, par value $.01 per share (the "Class B Common Stock"), held by any of the Selling Stockholders will be converted on a share-for-share basis into Class A Common Stock prior to or upon transfer and such underlying shares of Class A Common stock are being registered for resale. The Company issued such Class A Common Stock and Class B Common Stock to the Selling Stockholders in connection with the acquisition by the Company, or certain of its wholly owned subsidiaries, of the capital stock or assets of various institutional pharmacies or entities providing related services in business combination transactions. Certain of the Selling Stockholders have entered into employment agreements and noncompetition agreements with the Company and/or certain of its wholly owned subsidiaries. The additional 2,000,000 shares of Class A Common Stock covered by this Prospectus may be issued from time to time by the Company in connection with the acquisition by the Company, or certain of its wholly owned subsidiaries, of the capital stock or assets of various institutional pharmacies or entities providing related services in business combination transactions. Persons who will receive such shares of Class A Common Stock will be named in supplements to this prospectus to be filed by the Company. The following table shows, as to each Selling Stockholder, the number of shares owned by each Selling Stockholder prior to this offering and the number of shares of Class A Common Stock being registered hereby. The table below has been prepared on the basis of information furnished to the Company by or on behalf of the Selling Stockholders. Because any or all of the shares of Class A Common Stock listed below may be offered for sale by the Selling Stockholders from time to time, no estimate can be given as to the percentage of Class A Common Stock that will be held by the Selling Stockholders upon termination of sales pursuant to this Prospectus.
Shares Owned Number of Prior Shares Name to Offering to be Registered ---- ----------- ---------------- Jackson Family Limited Partnership............................ 5,631 5,631(1) Bonnie H. Innerst............................................. 21,112 21,112(2) B. Kent Abbott................................................ 27,054 27,054(3) Jalee Abbott.................................................. 26,946 26,946(3) J. Nicholas Marchiando and Karen A. Marchiando, Jt. Ten....... 7,407 7,407(4) Charles F. Daniel, Jr......................................... 2,500 2,500(5) Mack Choplin.................................................. 12,103 12,103(5) Tony Bigler................................................... 4,130 4,130(5) John Weeks.................................................... 4,130 4,130(5) Thomas D'Andrea............................................... 7,076 7,076(5) Daniel Rosefelt and Michele Rosefelt, Ten. by Entirety........ 23,329 23,329(6) - -------------------- (1) This amount represents shares of Class A Common Stock issued by the Company in connection with the Asset Purchase Agreement, dated January 30, 1998, among Precision X-Ray Services, Inc., Medical X-Ray Services, L.P., Katrina Meals, Krystyn Buddemeyer, the Jackson Family Limited Partnership, the James B. Jackson Revocable Trust, NCS Mobile Diagnostics, L.L.C. and the Company.
2 5 (2) This amount represents shares of Class A Common Stock issued by the Company in connection with the Asset Purchase Agreement, dated August 4, 1997, among Pharmacy Specialized Services, LLC, Bonnie H. Innerst and NCS HealthCare of Pennsylvania, Inc. In connection with the acquisition of assets, NCS HealthCare of Pennsylvania, Inc. entered into a non-compete agreement, which restricts Ms. Innerst from engaging in certain business activity that competes with the Company in a certain 100 mile radius for a period of five years. (3) This amount represents shares of Class A Common Stock issued by the Company in connection with the Agreement and Plan of Reorganization, dated May 1, 1998, among B. Kent Abbott, Jalee Abbott, NCS HealthCare, Inc. and NCS HealthCare of Oklahoma Acquisition Corp. In connection with the merger, JK Medical Services, Inc. entered into separate employment agreements, each for a period of three years, with Mr. Abbott and Ms. Abbott, respectively. (4) This amount represents shares of Class A Common Stock issued by the Company in connection with the Asset Purchase Agreement, dated December 2, 1997, among Marco & Company LLC, J. Nicholas Marchiando, Karen A. Marchiando and NCS HealthCare of Montana, Inc. In connection with the acquisition of assets, NCS HealthCare of Montana, Inc. entered into separate employment agreements, each for a period of three years, with Mr. Marchiando and Ms. Marchiando, respectively. (5) This amount represents shares of Class B Common Stock issued by the Company in connection with the Agreement and Plan of Merger, dated December 30, 1997, among MedStar Pharmacy, Inc., Charles F. Daniel, Jr., Samuel C. Yeager, Timothy L. Yeager, Mack Choplin, David Carver, Cynde Sharpe, Thomas D'Andrea, Chareles E. Trefzger, John Weeks, Tony Bigler, NCS HealthCare of North Carolina, Inc. and the Company. In connection with the merger, MedStar Pharmacy, Inc. entered an employment agreement with Mr. D'Andrea, pursuant to which Mr. D'Andrea will serve as executive director of MedStar Pharmacy, Inc. for a period of five years. (6) This amount represents shares of Class A Common Stock issued by the Company in connection with the Asset Purchase Agreement, dated November 18, 1997, among Progressive Rehab, Inc., Daniel Rosefelt, Michele Rosefelt and the Company. In connection with the merger, the Company entered into separate employment agreements, each for a period of three years, with Mr. Rosefelt and Ms. Rosefelt. The employment agreements were terminated effective June 14, 1998. Mr. Rosefelt and Ms. Rosefelt currently provide consulting services to the Company on a part-time basis. MANNER OF OFFERING Of the 2,141,418 shares of Class A Common Stock covered by this Prospectus, 141,418 shares are being offered and sold by the Selling Stockholders named herein. Unregistered shares of Class B Common Stock held by any of the Selling Stockholders will be converted on a share-for-share basis into Class A Common Stock prior to or upon transfer and such underlying shares of Class A Common Stock are being registered for resale. The Company issued such Class A Common Stock and Class B Common Stock to the Selling Stockholders in connection with the acquisition by the Company, or certain of its wholly owned subsidiaries, of the capital stock or assets of various institutional pharmacies or entities providing related services in business combination transactions. The additional 2,000,000 shares of Class A Common Stock covered by this Prospectus may be issued from time to time by the Company in connection with the acquisition by the Company, or certain of its wholly owned subsidiaries, of the capital stock or assets of various institutional pharmacies or entities providing related services in business combination transactions. Persons who will receive such shares of Class A Common Stock will be named in supplements to this prospectus to be filed by the Company. Sales of the shares of Class A Common Stock being registered hereby may be made from time to time in privately negotiated transactions, at fixed prices that may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. The shares of Class A Common Stock may also be sold in transactions on the Nasdaq National Market pursuant to one or more of the following types of transactions: (a) a block trade in which the broker or dealer so engaged will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction; (b) purchases by a broker or dealer as principal and resale by such broker or dealer for its account pursuant to this Prospectus; and (c) ordinary 3 6 brokerage transactions and transactions in which the broker solicits purchasers. In effecting sales, brokers or dealers engaged by the Selling Stockholders may arrange for other brokers or dealers to participate. Brokers or dealers will receive commissions or discounts from Selling Stockholders in amounts to be negotiated immediately prior to sale. Such brokers or dealers may be deemed to be "underwriters" within the meaning of the Securities Act of 1933, as amended (the "Securities Act"), in connection with such sales. In addition, any securities covered by this Prospectus that qualify for sale pursuant to Rule 144 under the Securities Act may be sold under Rule 144 rather than pursuant to this Prospectus. The Company has advised the Selling Stockholders of their obligations under the Exchange Act, and Regulation M promulgated thereunder, to avoid market manipulation of the Class A Common Stock until the offering pursuant to this Prospectus by all Selling Stockholders has been completed. The Company also has advised the Selling Stockholders of their obligations under the Securities Act to deliver copies of this Prospectus to any purchaser of their Class A Common Stock. DESCRIPTION OF CAPITAL STOCK The Company's Certificate of Incorporation (the "Certificate") authorizes capital stock consisting of 50 million shares of Class A Common Stock, 20 million shares of Class B Common Stock and one million shares of Preferred Stock, par value $.01 per share (the "Preferred Stock"). The Company is incorporated under the General Corporation Law of the State of Delaware (the "Delaware GCL"). COMMON STOCK At September 11, 1998, there were $13,886,071 shares of Class A Common Stock and 6,206,631 shares of Class B Common Stock issued and outstanding and options to purchase 707,625 shares of Class A Common Stock and options to purchase 164,550 shares of Class B Common Stock. In addition, at such date, there were an aggregate of 700,000 shares of Class A Common Stock reserved for issuance under the Company's 1996 Long Term Incentive Plan. The Class A Common Stock and Class B Common Stock are identical in all material respects except that (i) shares of the Class B Common Stock entitle the holders thereof to ten votes per share on all matters, and shares of the Class A Common Stock entitle the holders thereof to one vote per share on all matters and (ii) the shares of Class B Common Stock are subject to certain restrictions on transfer. The shares of Class B Common Stock are not transferable except in certain very limited instances to family members, trusts, other holders of Class B Common Stock, charitable organizations and entities controlled by such persons (collectively, "Permitted Transferees"). These restrictions on transfer may be removed by the Board of Directors if the Board determines that the restrictions may have a material adverse effect on the liquidity, marketability or market value of the outstanding shares of Class A Common Stock. The Class B Common Stock is fully convertible at any time into shares of Class A Common Stock on a share-for-share basis and will automatically be converted into shares of Class A Common Stock upon any purported transfer to non-Permitted Transferees. Once a share of Class B Common Stock has been converted into a share of Class A Common Stock, such share of Class A Common Stock cannot thereafter be re-converted into Class B Common Stock. Because the Class B Common Stock will at all times be convertible into Class A Common Stock on a share-for-share basis, holders of Class B Common Stock will be able to sell the equity interest represented by their Class B Common Stock to persons who are not Permitted Transferees by converting such shares into Class A Common Stock. As is the case with Preferred Stock and additional Class A Common Stock, additional Class B Common Stock can be issued at the discretion of the Board of Directors. Except as set forth below (and as provided by law and in the Company's Certificate now in effect), all matters submitted to a vote of the Company's stockholders will be voted on by holders of Class A Common Stock and Class B Common Stock voting together as a single class. Holders of outstanding shares of Class A Common Stock and Class B Common Stock, respectively, vote separately as a class with respect to amendments to the Certificate that would increase the authorized number of shares of Class B Common Stock, or that would make 4 7 other amendments to the Certificate (other than increases in the number of authorized shares of Class A Common Stock) that alter or change the designations or powers or the preferences, qualifications, limitations, restrictions or the relative or special rights of either the Class A Common Stock or the Class B Common Stock so as to affect them adversely. No cash dividend may be declared or paid on the Class B Common Stock unless an equal or greater dividend is simultaneously declared or paid on the Class A Common Stock. Otherwise, subject to the rights of holders of Preferred Stock, if any, the Class A Common Stock and the Class B Common Stock rank equally and have equal rights per share with respect to all dividends and distributions, including distributions upon liquidation of the Company and consideration to be received upon a merger or consolidation of the Company or a sale of all or substantially all of the Company's assets. In the case of stock dividends or stock splits, however, only shares of Class A Common Stock can be distributed in respect of outstanding Class A Common Stock and only shares of Class B Common Stock can be distributed in respect of outstanding Class B Common Stock. Neither shares of Class A Common Stock nor shares of Class B Common Stock can be split, divided or combined unless all outstanding shares of the other class are correspondingly split, divided or combined. Because of the restrictions on transfer of the Class B Common Stock, over time shares of Class B Common Stock having ten votes will (unless the Directors determine to remove such restrictions) be converted into shares of Class A Common Stock having one vote, as holders convert their Class B Common Stock into Class A Common Stock in order to sell their shares. Accordingly, the remaining holders of Class B Common Stock who continue to hold their Class B Common Stock will realize over time an increase in their relative voting power in the Company. The Directors and executive officers of the Company and their affiliates collectively beneficially own approximately 67% of the total voting power of the Company. A substantial portion of this group's stock ownership consists of Class B Common Stock. If those individuals continue to hold their Class B Common Stock for the foreseeable future, the degree of control of the Company by these Directors and executive officers and their affiliates, and their percentage of the total voting power of the Company, will increase over time. Holders of Class A Common Stock and Class B Common Stock do not have any preemptive rights or rights to subscribe for additional securities of the Company and are not subject to any further calls or assessments by the Company. There are no redemption or sinking fund provisions applicable to the Class A Common Stock or the Class B Common Stock. The shares of Class A Common Stock are not convertible into any other series or class of the Company's securities. Subject to the preferences applicable to the Preferred Stock, if any, outstanding at the time, holders of shares of Class A Common Stock and Class B Common Stock are entitled to dividends, if, when and as declared by the Board of Directors, from funds legally available therefor and are entitled, in the event of liquidation, to share ratably in all assets remaining after payment of liabilities and Preferred Stock preferences, if any. See "Preferred Stock." PREFERRED STOCK The Company's Board of Directors is authorized, without further action by the stockholders, to issue, from time to time, not in excess of one million shares of Preferred Stock in one or more classes or series, and to fix or alter the designations, powers and preferences, and relative, participating, optional or other rights, if any, and qualifications, limitations or restrictions thereof, 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), rights and terms of redemption (including sinking fund provisions, if any), redemption price and liquidation preferences of any unissued shares or wholly unissued series of Preferred Stock, and the number of shares constituting any such class or series and the designation thereof, and to increase or decrease the number of shares of any such class or series subsequent to the issuance of shares of such class or series, but not below the amount then outstanding. Currently, there are no shares of Preferred Stock outstanding, and the Company has no present intention to issue any Preferred Stock. 5 8 TWO-TIER BUSINESS COMBINATION PROVISION The Certificate contains a provision designed to help assure that stockholders of the Company receive equitable treatment, beyond that presently provided by the applicable state law, in the event of certain Business Combinations (as defined) between the Company and another corporation or entity. Delaware law generally requires the affirmative vote of the holders of at least a majority of the outstanding shares entitled to vote to approve a merger, consolidation or disposition of all or substantially all of the Company's assets. The Certificate raises the affirmative vote required to approve such a business combination to at least 66-2/3% of the total voting power of the Company's outstanding shares of Class A Common Stock and Class B Common Stock, unless a Fair Price (as described herein) is paid to each of the stockholders of the Company. The Board of Directors is concerned about the partial or "two-step" tender offer technique of accomplishing corporate takeovers. The first step in this technique is a tender offer made by another corporation or entity seeking control at a price that often substantially exceeds the market value of the target corporation's stock. After acquiring a controlling number of shares, the entity will then effectuate the second step: a business combination with the target corporation designed to eliminate the then remaining stockholders' interest in the corporation. The terms of the second step business combination may not reflect arms-length bargaining and therefore may not assure proper treatment of the stockholders remaining after the tender offer. The Board of Directors intends to prevent persons who might acquire a controlling interest in the Company from imposing a business combination on minority stockholders unless such controlling persons are able and willing to deal fairly with minority stockholders by paying them a fair price for their interest in the Company. The Board recognizes that this fair price requirement might have the effect of discouraging unilateral tender offers and other takeover proposals to acquire control of the Company, as well as unsolicited acquisitions of the Company's outstanding shares. The Certificate requires, in addition to any required vote by the then outstanding Preferred Stock, the vote of not less than 66-2/3% of the then outstanding shares of the Company's Class A Common Stock and Class B Common Stock to approve any Business Combination of the Company with any Related Person (as defined) unless certain conditions have been met. In addition, the 66-2/3% vote must include the affirmative vote of 51% of the outstanding shares of Class A Common Stock and Class B Common Stock held by stockholders other than the Related Person. Accordingly, the actual vote required to approve the Business Combination may be greater than 66-2/3%, depending upon the number of shares controlled by the Related Person. A Related Person is defined to include any person or entity which is, directly or indirectly, the beneficial owner of shares of Class A Common Stock representing 5% or more of the total voting power of the Company, including any affiliate or associate of such person or entity. The term Business Combination is defined to include virtually any transaction between the Company and a Related Person, including a merger, consolidation or sale of assets. The 66-2/3% requirement and the 51% requirement are not applicable, however (and, therefore, the proposed Business Combination could be approved by a simple majority of the stockholders unless otherwise required by Delaware law), if the Related Person pays a Fair Price (as defined) to the Company's stockholders in the transaction or if a majority of the Board of Directors approves the transaction. Under the terms of the Certificate, the Fair Price must be a least equal to the greatest of (i) the highest price paid or agreed to be paid by the Related Person to purchase any shares of the Company's common equity securities, (ii) the highest market price of the common equity securities during the 24-month period prior to the taking of such vote, or (iii) 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. In addition, the Fair Price consideration to be received by the Company's stockholders must be of the same form and kind as the most favorable form and kind of consideration paid by the Related Person in acquiring any of its shares of common equity securities of the Company. The Certificate provides that the above provisions regarding two-tier business combinations may not be amended, altered, changed or repealed except by the affirmative vote of at least 66-2/3% of the shares of the common equity securities entitled to vote at a meeting of the stockholders called for the consideration of such amendment, alteration, change or repeal, and at least 51% of the outstanding shares entitled to vote thereon held by stockholders who are not Related Persons, unless such proposal shall have been proposed by a majority of the Board of Directors. 6 9 THE DELAWARE BUSINESS COMBINATION ACT Section 203 of the Delaware GCL (the "Delaware Business Combination Act") imposes a three-year moratorium on business combinations between a Delaware corporation whose stock generally is publicly traded or held of record by more than 2,000 stockholders and an "interested stockholder" (in general, a stockholder owning 15% or more of a corporation's outstanding voting stock) or an affiliate or associate thereof unless (a) prior to an interested stockholder becoming such, the board of directors of the corporation approved either the business combination or the transaction resulting in the interested stockholder becoming such, (b) upon consummation of the transaction resulting in the interested stockholder becoming such, the interested stockholder owns 85% of the voting stock outstanding at the time the transaction commenced (excluding, from the calculation of outstanding shares, shares beneficially owned by directors who are also officers and certain employee stock plans) or (c) on or after an interested stockholder becomes such, the business combination is approved by (i) the board of directors and (ii) holders of at least 66-2/3% of the outstanding shares (other than those shares beneficially owned by the interested stockholder) at a meeting of stockholders. The term "business combination" is defined generally to include mergers or consolidations between a Delaware corporation and an interested stockholder involving the assets or stock of the corporation or its majority-owned subsidiaries and transactions that increase an interested stockholder's percentage ownership of stock. The Delaware Business Combination Act applies to certain corporations incorporated in the State of Delaware unless the corporation expressly elects not to be governed by such legislation and sets forth such election in (a) the corporation's original certificate of incorporation, (b) an amendment to the corporation's by-laws as adopted by the corporation's board of directors within 90 days of the effective date of such legislation or (c) an amendment to the corporation's certificate of incorporation or by-laws is approved by (in addition to any other vote required by law) a majority of the shares entitled to vote (however, such amendment would not be effective until 12 months after the date of its adoption and would not apply to any business combination between the corporation and any person who became an interested stockholder on or prior to such adoption of such amendment). The Company has not made such an election and, upon completion of the offering, will be subject to the Delaware Business Combination Act. DIRECTOR LIABILITY PROVISIONS As permitted by the Delaware GCL, the Certificate contains a provision that eliminates under certain circumstances the personal liability of Directors (only in their capacities as Directors of the Company) to the Company or its stockholders for monetary damages for a breach of fiduciary duty as Directors. The provision in the Certificate does not change a Director's duty of care, but it does authorize the Company to eliminate monetary liability for certain violations of the duty, including violations based on grossly negligent business decisions, which may include decisions relating to attempts to change control of the Company. The provision does not affect the availability of equitable remedies for a breach of duty of care, such as an action to enjoin or rescind a transaction involving a breach of fiduciary duty; however, in certain circumstances equitable remedies may not be available as a practical matter. The provision in the Certificate in no way affects a Director's liability under the federal securities laws. In addition, the Company's By-Laws and indemnity agreements entered into with the Company's Directors and officers indemnify its past and current Directors and officers for and provides advancements in respect of all expense, liability and loss reasonably incurred in connection with any threatened, pending or completed action, suit or proceeding, either civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a Director or officer of the Company, including, in certain circumstances under the indemnity agreements, for settlements in derivative actions. CLASSIFIED BOARD The Certificate divides the Board of Directors into three classes. The Directors serve staggered terms of three years, with the members of one class being elected in any year, as follows: (i) Phyllis K. Wilson and A. Malachi Mixon III have been designated as Class I Directors and will serve until the 1999 annual meeting; (ii) Boake A. Sells and Kevin B. Shaw have been designated as Class II Directors and will serve until the 2000 annual meeting; and (iii) Richard L. Osborne and Jon H. Outcalt have been designated as Class III Directors and will serve until the 1998 annual meeting; and in each case until their respective successors are elected and qualified. 7 10 A classified Board of Directors may have the effect of making it more difficult to remove incumbent Directors, providing such Directors with enhanced ability to retain their positions. A classified Board of Directors may also make the acquisition of control of the Company by a third party by means of a proxy contest more difficult. In addition, the classification may make it more difficult to change the majority of Directors for business reasons unrelated to a change of control. The Certificate provides that the above provisions regarding classification of the Board of Directors may not be amended, altered, changed or repealed except by the affirmative vote of at least 66% of the shares of Common Stock entitled to vote at a meeting of the stockholders called for the consideration of such amendment, alteration, change or repeal, unless such proposal shall have been proposed by a majority of the Board of Directors. GENERAL It is possible that the existence of the ten vote per share Class B Common Stock, the Company's ability to issue Preferred Stock, the increased voting requirements with respect to a Business Combination provided for in the Certificate, the provisions of the Delaware Business Combination Act and the division of the Board of Directors of the Company into classes as provided in the Certificate, may discourage other persons from making a tender offer for or acquisitions of substantial amounts of the Company's Class A Common Stock. This could have the incidental effect of inhibiting changes in management and may also prevent temporary fluctuations in the market price of the Company's Class A Common Stock that often result from actual or rumored takeover attempts. In addition, the limited liability provisions in the Certificate with respect to Directors and officers may discourage stockholders from bringing a lawsuit against Directors for breach of their fiduciary duty and may also have the effect of reducing the likelihood of derivative litigation against Directors and officers, even though such an action, if successful, might otherwise have benefited the Company and its stockholders. Furthermore, a stockholder's investment in the Company may be adversely affected to the extent that cost of settlement and damage awards against the Company's Directors and executive officers are paid by the Company pursuant to the indemnification provisions contained in the Company's By-Laws and indemnity agreements described above. TRANSFER AGENT AND REGISTRAR The Company's Transfer Agent and Registrar for the Class A Common Stock and Class B Common Stock is National City Bank, Cleveland, Ohio. VALIDITY OF SHARES The validity of the Class A Common Stock offered hereby will be passed upon for the Company by Calfee, Halter & Griswold LLP, Cleveland, Ohio. EXPERTS The consolidated financial statements of NCS HealthCare, Inc. and its subsidiaries appearing in NCS HealthCare, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1997, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. The combined statement of assets acquired and liabilities assumed of Thrift Drug, Inc. and Fay's Incorporated as of January 30, 1998, and the related combined statement of revenues and direct expenses for the year then ended appearing in the Company's Current Report on Form 8-K dated January 30, 1998, as amended on April 17, 1998, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. With respect to the unaudited condensed consolidated interim financial information for the three-month periods ended September 30, 1997, December 31, 1997 and March 31, 1998, incorporated by reference in this Prospectus, Ernst & Young LLP has reported that they have applied limited procedures in accordance with professional standards for a review of such information. However, their separate reports, included in NCS HealthCare, Inc.'s Quarterly Reports on Form 10-Q for the periods ended September 30, 1997, December 31, 1997 and March 31, 1998, and incorporated herein by reference, state that they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their reports on such information should be restricted considering the limited nature of the review procedures applied. The independent auditors are not subject to the liability provisions of Section 11 of the Securities Act for their reports on the 8 11 unaudited interim financial information because the reports are not a "report" or a "part" of the Registration Statement prepared or certified by the auditors within the meaning of Sections 7 and 11 of the Act. 9 12 ================================================================================ No dealer, salesperson or any other person has been authorized to give any information or to make any representations not contained in this Prospectus and, if given or made, such information or representations must not be relied upon as having been authorized by the Company. This Prospectus does not constitute an offer to sell or the solicitation of an offer to buy any of the Securities offered hereby in any jurisdiction to any person to whom it is unlawful to make such offer in such jurisdiction. Neither the delivery of this Prospectus nor any sale made hereunder shall, under any circumstances, create any implication that information contained herein is correct as of any time subsequent to the date hereof or that there has been no change in the affairs of the Company since that date. ---------- TABLE OF CONTENTS PAGE ---- PROSPECTUS - ---------- The Company.................................................................1 Available Information ......................................................1 Incorporation Of Certain Documents By Reference ..............................................................1 Disclosure Regarding Forward-Looking Statements..............................................................1 Selling Stockholders........................................................2 Manner of Offering..........................................................3 Description Of Capital Stock ...............................................4 Validity of Shares..........................................................8 Experts ....................................................................8 ================================================================================ 2,141,418 SHARES CLASS A COMMON STOCK ($.01 PAR VALUE) [NCS LOGO] NCS HEALTHCARE, INC. ------------------ PROSPECTUS September ___, 1998 ------------------ ================================================================================ 13 PART II. INFORMATION NOT REQUIRED IN PROSPECTUS. Item 14. Other Expenses of Issuance and Distribution. The following table sets forth the estimated expenses payable by the Company in connection with the sale and distribution of the Class A Common Stock registered hereby: SEC Registration Fee................................... $10,779 ------- Accounting Fees ....................................... $ 7,500 ------- Fees and Expenses of Counsel........................... $ 7,500 ------- Nasdaq Additional Listing Fee.......................... $17,500 ------- Miscellaneous.......................................... $ 1,721 ------- Total......................................... $45,000 =======
Item 15. Indemnification of Directors and Officers. ------------------------------------------ Section 145 of the Delaware GCL 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 Company's By-laws provide that the Company shall indemnify, to the fullest extent permitted by Delaware law, any Director or officer who was or is a party or is threatened to be made a party to any action, suit or proceeding by reason of the fact that he or she, or a person of which he or she is the legal representative, is or was a Director or officer of the Company, or is or was serving at the request of the Company 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 Company's By-laws provide for the advancement of expenses, including attorneys' fees, incurred by a Director or officer of the Company 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 Company as authorized in the By-laws. In addition, the By-laws permit the Company to maintain insurance, at its expense, to protect itself and any of II-1 14 its Directors or officers or individuals serving at the request of the Company as a Director, officer, partner, trustee, employee or agent of another entity, against any expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the Delaware GCL. Section 102 (b) of the Delaware GCL 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 Company's Certificate provides that a Director of the Company shall not be personally liable to the Company 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 that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware GCL or (iv) for any transaction from which the Director derived an improper personal benefit. The Company's Certificate 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 Company 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, 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 Company or of any subsidiary of the Company or of any other entity in which they are serving at the request of the Company. The agreements bind the Company to provide indemnification to Directors and officers whether or not the Company maintains Directors and officers liability insurance coverage and regardless of any future changes in the By-laws. The protection to be afforded Directors and 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 16. Exhibits. -------- See the Exhibit Index at page E-1 of this Registration Statement. Item 17. Undertakings. ------------ (1) The undersigned Registrant hereby undertakes: (a) To file, during the 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 event arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement; PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. II-2 15 (b) 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. (c) 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. (2) The undersigned Registrant hereby undertakes that for the purpose of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted for Directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a Director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such Director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-3 16 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-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cleveland and the State of Ohio, as of the 15th day of September, 1998. NCS HEALTHCARE, INC. By: /s/ Jon H. Outcalt ------------------------------ Jon H. Outcalt Chairman of the Board POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being a Director and/or officer of NCS HealthCare, Inc., a Delaware corporation, hereby constitutes and appoints Jon H. Outcalt, Kevin B. Shaw, Gerald D. Stethem, Thomas F. McKee and John J. Jenkins, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite, necessary or advisable to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on September 15, 1998. SIGNATURE TITLE --------- ----- /s/ Jon H. Outcalt Chairman of the Board of Directors - ---------------------------- Jon H. Outcalt /s/ Kevin B. Shaw President, Chief Executive Officer and Director - ---------------------------- (Principal Executive Officer) Kevin B. Shaw /s/ Gerald D. Stethem Chief Financial Officer - ---------------------------- (Principal Financial and Accounting Officer) Gerald D. Stethem /s/ A. Malachi Mixon III Director - ---------------------------- A. Malachi Mixon III /s/ Boake A. Sells Director - ---------------------------- Boake A. Sells II-4 17 /s/ Richard L. Osborne Director - ---------------------------- Richard L. Osborne /s/ Phyllis K. Wilson Director - ---------------------------- Phyllis K. Wilson II-5 18 NCS HEALTHCARE, INC. EXHIBIT INDEX EXHIBIT DESCRIPTION ------- ----------- NO. ------- 4.1 Specimen certificate of the Company's Class A Common Stock. (A) 4 2 Specimen certificate of the Company's Class B Common Stock. (A) 4.3 Form of 5 3/4% Convertible Subordinated Debentures due 2004. (B) 4.4 Indenture, dated August 13, 1997, between the Company and National City Bank, as Trustee. (B) 5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity of the shares of Class A Common Stock. 15.1 Acknowledgement 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 (included on Page II-4 of this Registration Statement). - ----------------- (A) Incorporated herein by reference to the appropriate exhibit to the Company's Registration Statement on Form S-1 (Reg. No. 33-80455). (B) Incorporated herein by reference to the appropriate exhibit to the Company's Registration Statement on Form S-3, as amended (Reg. No. 333-35551). E-1 EX-5.1 2 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 September 15, 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"), in connection with the sale of (i) 141,418 shares of the Company's Class A Common Stock, par value $.01 per share (the "Class A Common Stock"), to be offered and sold by certain selling stockholders (the "Issued Shares") and (ii) up to 2,000,000 shares of Class A Common Stock that may be offered and sold from time to time by holders of Class A Common Stock (the "Unissued Shares") that will be named in amendments to the Registration Statement on Form S-3 (the "Registration Statement") or supplements to the Prospectus comprising a part of the Registration Statement. As counsel for the Company, we have assisted in the preparation of the Registration Statement to be filed by the Company with the Securities and Exchange Commission to effect the registration of the Issued Shares and the Unissued 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: 1. The Issued Shares are duly authorized, validly issued, fully paid and nonassessable; and 2. The Unissued Shares will be duly authorized and, when issued and delivered pursuant to the terms of the applicable agreement entered into by the Company in connection with their sale, will be validly issued, fully paid and nonassessable. This opinion is limited to the General Corporation Law of the State of Delaware, and we express no view 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 Issued Shares and the Unissued Shares and may not 2 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, and to the reference to us under the caption "Validity of Shares" in the Prospectus comprising a part of the Registration Statement. Respectfully submitted, /s/ Calfee, Halter & Griswold LLP CALFEE, HALTER & GRISWOLD LLP EX-15 3 EXHIBIT 15 1 EXHIBIT 15.1 September 14, 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-3) of NCS HealthCare, Inc. for the registration of 2,141,418 shares of its Class A common stock of our reports dated October 28, 1997, January 28, 1998 and April 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, December 31, 1997 and March 31, 1998. /s/ Ernst & Young LLP Ernst & Young LLP EX-23.2 4 EXHIBIT 23.2 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of NCS HealthCare, Inc. for the registration of 2,141,418 shares of its Class A Common Stock and to the incorporation by reference therein of our reports (a) dated August 1, 1997, with respect to the consolidated financial statements of NCS HealthCare, Inc. included in its Annual Report (Form 10-K) for the year ended June 30, 1997, and (b) dated March 31, 1998, with respect to the combined statement of assets acquired and liabilities assumed of Thrift Drug, Inc. and Fay's, Incorporated as of January 30, 1998, and the related combined statement of revenues and direct expenses for the year then ended included in NCS HealthCare, Inc.'s Current Report on Form 8-K dated January 30, 1998, as amended on April 17, 1998, both filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Ernst & Young LLP Cleveland, Ohio September 14, 1998 -----END PRIVACY-ENHANCED MESSAGE-----