-----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, CTtu7NltvHZFj7E/ngPJF0Vzg85h/Rbk62Pp9kFaB7ft1I2bBEDk6beoasTqFzKh TofIETvdvU+2b0PN0tcG1Q== 0001005477-98-002056.txt : 19980629 0001005477-98-002056.hdr.sgml : 19980629 ACCESSION NUMBER: 0001005477-98-002056 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980626 EFFECTIVENESS DATE: 19980626 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: OMNICARE INC CENTRAL INDEX KEY: 0000353230 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DRUG STORES AND PROPRIETARY STORES [5912] IRS NUMBER: 311001351 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 POS SEC ACT: SEC FILE NUMBER: 333-53637 FILM NUMBER: 98655276 BUSINESS ADDRESS: STREET 1: 50 E RIVERCENTER BLVD STREET 2: STE 1530 CITY: COVINGTON STATE: KY ZIP: 41011 BUSINESS PHONE: 5137626666 MAIL ADDRESS: STREET 1: 2800 CHEMED CENTER STREET 2: 255 EAST FIFTH ST CITY: CINCINNATI STATE: OH ZIP: 45202-4728 S-8 POS 1 PEA #1 TO FORM S-8 ON FORM S-4 As filed with the Securities and Exchange Commission on June 26, 1998 Registration No. 333-_______ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------------- Post-Effective Amendment No. 1 on FORM S-8 to FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------------- OMNICARE, INC. (Exact name of registrant as specified in its charter) 50 East RiverCenter Blvd. -- Suite 1530 DELAWARE Covington, Kentucky 41011 31-1001351 - -------- ------------------------- ---------- (State or other (Address of Principal Executive (I.R.S. Employer jurisdiction of Offices) (Zip Code) Identification No.) incorporation or organization) 1996 Stock Option Plan of CompScript, Inc. Cheryl D. Hodges c/o Omnicare Management Company 2800 Chemed Center 255 East Fifth Street Cincinnati, Ohio 45202-4728 (Name and address of agent for service) Telephone number, including area code, of agent for service: (513) 762-6666 copy to: Morton A. Pierce Richard D. Pritz Dewey Ballantine LLP 1301 Avenue of the Americas New York, New York 10019 (212) 259-8000 ------------------------------ CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------- Title of securities to Amount to be Proposed maximum Proposed maximum Amount of be registered registered offering price per aggregate offering registration fee share price - ---------------------------------------------------------------------------------------------------- Common Stock, par value $1.00 per share 213,401 shares N/A (1) N/A (1) N/A (1) - ----------------------------------------------------------------------------------------------------
(1) The registration fee with respect to these shares was previously paid in connection with the filing of Registrant's Registration Statement on S-4 (Registration No. 333-53637) which was declared effective on May 28, 1998. See Explanatory Note below. EXPLANATORY NOTE Omnicare, Inc. (the "Registrant") hereby amends its Registration Statement on Form S-4 (File No. 333-53637), effective on May 28, 1998 (the "Form S-4"), by filing this Post-Effective Amendment No. 1 on Form S-8 to the Form S-4 (the "Registration Statement") relating to 213,401 shares of Common Stock, $1.00 par value, of the Registrant (the "Common Stock") issuable in connection with the 1996 Stock Option Plan, as amended (the "Plan"), of CompScript, Inc. ("CompScript"). On June 26, 1998, pursuant to an Agreement and Plan of Merger dated February 23, 1998, as amended (the "Merger Agreement"), CompScript became a wholly-owned subsidiary of the Registrant (the "Merger"). As provided in the Merger Agreement, each outstanding share of common stock, $.0001 par value, of CompScript ("CompScript Common Stock"), was converted into the right to receive 0.12947 shares of the Registrant's Common Stock. Pursuant to the Merger Agreement, CompScript and the Registrant have taken such actions as are necessary such that CompScript Common Stock is no longer issuable under the Plan. Instead, the Registrant's Common Stock will be issuable under the Plan in such amounts and at such prices as adjusted pursuant to the Plan and the Merger Agreement. This Registration Statement relates to 213,401 shares of the Registrant's Common Stock registered on Form S-4, which were not issued in connection with the Merger and that are issuable in connection with the Plan. 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS This Registration Statement on Form S-8 (the "Registration Statement") is being filed by Omnicare, Inc. (the "Company" or "Registrant") with respect to the 1996 Stock Option Plan of CompScript, Inc., as amended (the "Plan"), referred to on the cover of this Registration Statement. The document(s) containing the information required in Part I of this Registration Statement will be sent or given to each of the participants in the Plan, as specified by Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933 (the "Securities Act"). Such document(s) are not being filed with the Commission but constitute (together with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents heretofore filed with the Commission pursuant to the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1997; (b) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998; (c) The Company's Current Reports on Form 8-K, dated February 18, 1998, April 17, 1998 and May 19, 1998; (d) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 1997; and (e) The description of the Company's Common Stock set forth in the Company's Registration Statement on Form 8-A/A-1 (File No. 1-8269) filed with the Commission on April 17, 1996. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all Common Stock offered hereunder has been sold or which deregisters all Common Stock then remaining unsold hereunder shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein, or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. 3 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Restated Certificate of Incorporation, as amended, and Amended Bylaws of the Company, and separate Indemnification Agreements, provide for the indemnification of each director and officer of the Company in connection with any claim, action, suit or legal proceeding brought or threatened by reason of his or her position with the Company. In addition, the General Corporation Law of the State of Delaware ("Delaware Law") permits the Company to indemnify its directors, officers and others against judgments, fines, amounts paid in settlement and attorneys' fees resulting from various types of legal actions or proceedings if the actions of the party being indemnified meet the standards of conduct specified in the Delaware Law. The Company's directors and officers are, in addition, insured against loss arising from any claim against them or a wrongful act or omission with certain exceptions and limitations. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS See Index to Exhibits on Page 9. ITEM 9. UNDERTAKINGS The undersigned registrant hereby undertakes: (a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) That, for purposes of determining any liability under the Securities Act of 1933, each filing of 4 the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the 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 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. 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 Cincinnati, State of Ohio, on the 26th day of June, 1998. OMNICARE, INC. By /s/ Joel F. Gemunder ------------------------------- Joel F. Gemunder President POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each of the persons whose signature appears below hereby constitutes and appoints Edward L. Hutton, Joel F. Gemunder and Cheryl D. Hodges his or her true and lawful attorneys-in-fact and agents, with full power of substitution, and each with power to act alone, to sign and execute on behalf of the undersigned any and all amendments or supplements to this Registration Statement, and to perform any acts necessary to be done in order to file any and all such amendments and supplements with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and each of the undersigned does hereby ratify and confirm all that said attorneys-in-fact and agents, or their substitutes, shall 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 and on the dates indicated. SIGNATURE TITLE DATE /s/ Edward L. Hutton - ----------------------------- Chairman and Director June 26, 1998 Edward L. Hutton (Principal Executive Director) /s/ Joel F. Gemunder - ----------------------------- President and Director June 26, 1998 Joel F. Gemunder (Principal Executive Officer) /s/ David W. Froesel, Jr. - ----------------------------- Senior Vice President and Chief June 26, 1998 David W. Froesel, Jr. Financial Officer (Principal Financial Officer and Principal Accounting Officer) 6 /s/ Ronald K. Baur - ----------------------------- Director June 26, 1998 Ronald K. Baur /s/ Timothy E. Bien - ----------------------------- Director June 26, 1998 Timothy E. Bien /s/ Charles H. Erhart, Jr. - ----------------------------- Director June 26, 1998 Charles H. Erhart, Jr. /s/ Mary Lou Fox - ----------------------------- Director June 26, 1998 Mary Lou Fox /s/ Cheryl D. Hodges - ----------------------------- Director June 26, 1998 Cheryl D. Hodges /s/ Thomas C. Hutton - ----------------------------- Director June 26, 1998 Thomas C. Hutton /s/ Patrick E. Keefe - ----------------------------- Director June 26, 1998 Patrick E. Keefe /s/ Sandra E. Laney - ----------------------------- Director June 26, 1998 Sandra E. Laney /s/ Andrea R. Lindell - ----------------------------- Director June 26, 1998 Andrea R. Lindell /s/ Sheldon Margen - ----------------------------- Director June 26, 1998 Sheldon Margen, M.D. 7 /s/ Kevin J. McNamara - ----------------------------- Director June 26, 1998 Kevin J. McNamara /s/ D. Walter Robbins, Jr. - ----------------------------- Director June 26, 1998 D. Walter Robbins, Jr. 8 INDEX TO EXHIBITS Number 3.1 Restated Certificate of Incorporation of the Registrant (incorporated herein by reference to Registrant's Annual Report on Form 10-K for the year ended December 31, 1996). 3.2 Certificate of Amendment of Registrant's Restated Certificate of Incorporation (incorporated herein by reference to Registrant's Registration Statement on Form S-4 (Registration No. 333-53637), filed with the Commission on May 27, 1998). 3.3 Amended Bylaws of the Registrant (incorporated herein by reference to Registrant's Annual Report on Form 10-K for the year ended December 31, 1992). 4.1 CompScript 1996 Stock Option Plan (incorporated herein by reference to CompScript, Inc.'s Proxy Statement on Schedule 14A filed with the Commission on June 17, 1996). 4.2 1997 Amendment to Stock Option Plan (incorporated herein by reference to CompScript, Inc.'s Annual Report on Form 10-KSB for the year ended December 31, 1997). 5 Opinion of Dewey Ballantine LLP.* 23.1 Consent of Dewey Ballantine LLP (contained in opinion filed as Exhibit 5). 23.2 Consent of Price Waterhouse LLP.* 24 Power of Attorney (included on signature page). - -------------- * Filed herewith. 9 EX-5 2 OPINION RE: LEGALITY Exhibit 5 [Dewey Ballantine LLP Letterhead] June 26, 1998 Omnicare, Inc. 50 East RiverCenter Blvd. -- Suite 1530 Covington, Kentucky 41011 Ladies and Gentlemen: We have acted as special counsel to Omnicare, Inc., a Delaware corporation ("Omnicare"), in connection with the filing by Omnicare of a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933 for the registration of up to 213,401 shares of common stock, $1.00 par value per share (the "Shares"), of Omnicare which may be issued under the 1996 Stock Option Plan of CompScript, Inc., as amended, referred to therein (the "Plan"). For the purpose of rendering the opinion set forth herein, we have been furnished with and examined such certificates and other documents as we have deemed necessary or advisable for the purpose of expressing the opinion contained herein. With respect to all of the documents reviewed, we have assumed, without investigation, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as certified or reproduced copies. We are admitted to the Bar of the State of New York and express no opinion as to the laws of any other jurisdiction other than the General Corporation Law of the State of Delaware. Based on and subject to the foregoing, we are of the opinion that the issuance of the Shares upon exercise of the options contemplated by the Plan (the "Options"), has been duly authorized by Omnicare and when the Shares have been issued as authorized in accordance with the terms of the Options, the Shares will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Dewey Ballantine LLP DEWEY BALLANTINE LLP EX-23.2 3 CONSENT OF INDPENDENT ACCOUNTANTS Exhibit 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 30, 1998 appearing on page 34 of Omnicare, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1997. /s/ Price Waterhouse LLP PRICE WATERHOUSE LLP Cincinnati, Ohio. June 26, 1998 -----END PRIVACY-ENHANCED MESSAGE-----