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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 18, 1997
REGISTRATION NO. 33-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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HORIZON PHARMACIES, INC.
(Exact name of registrant as specified in its charter)
TEXAS 75-2441557
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
275 W. PRINCETON DRIVE
PRINCETON, TEXAS 75407
(972) 736-2424
(Address, including zip code, of Principal Executive Offices)
HORIZON PHARMACIES, INC. 1997 STOCK OPTION PLAN
(Full title of the plan)
COPIES TO:
HORIZON PHARMACIES, INC. DOUGLAS A. BRANCH, ESQ.
275 W. PRINCETON DRIVE PHILLIPS MCFALL MCCAFFREY MCVAY & MURRAH, P.C.
PRINCETON, TEXAS 75407 12TH FLOOR, ONE LEADERSHIP SQUARE
TELEPHONE: (972) 736-2424 211 N. ROBINSON
(Name, address, including zip code, OKLAHOMA CITY, OKLAHOMA 73102
and telephone number, including TELEPHONE: (405) 235-4100
area code, of agent for service)
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE PRICE FEE
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Common Stock, $.01 246,242 shares $6.00 $1,477,452 $448.00
par value
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, there are
also registered hereunder such additional indeterminate number of shares as
may be issued as a result of the antidilution provisions of the Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
HORIZON Pharmacies, Inc. (the "Registrant") will send or give to all
participants in the HORIZON Pharmacies, Inc. 1997 Stock Option Plan (the
"Plan") the document(s) containing information specified by Part I of this
Form S-8 Registration Statement (the "Registration Statement") as specified
in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933 (the "1933 Act"). The
Registrant has not filed such document(s) with the Commission, but such
documents (along with the documents incorporated by reference into the
Registration Statement pursuant to Item 3 of Part II hereof) shall constitute
a prospectus that meets the requirements of Section 10(a) of the 1933 Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by HORIZON Pharmacies, Inc. (the
"Registrant") with the Commission are hereby incorporated by reference in
this Registration Statement:
(a) The Registrant's prospectus dated July 8, 1997 filed pursuant to
Rule 424(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which contains audited financial statements for the Registrant's
latest fiscal year for which such statements have been filed;
(b) The Registrant's Quarterly Reports on Form 10-QSB for the fiscal
quarters ended June 30, 1997(as amended by Form 10-QSB/A filed October 24,
1997) and September 30, 1997, and Current Reports on Forms 8-K dated (date of
earliest event reported): (i) August 2, 1997, as amended by Forms 8-K/A filed
October 16, 1997 and October 24, 1997; (ii) August 30, 1997, as amended by
Form 8-K/A dated November 13, 1997; (iii) September 18, 1997, as amended by
Form 8-K/A filed November 17, 1997; (iv) October 11, 1997; (v) October 21,
1997; and (vi) November 6, 1997;
(c) The description of the Registrant's common stock, par value $.01
per share (the "Common Stock"), contained in the Registrant's Registration
Statement on Form 8-A filed with the Commission on April 21, 1997, and Form
8-A/A filed with the Commission on June 10, 1997, including any amendment to
such registration statement or report filed for the purpose of updating such
description; and
(d) All documents, reports and definitive proxy statements filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act, which are filed subsequent to the date hereof and prior to the filing of
a post-effective amendment which indicates the termination of the offering
made hereby.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Bylaws of the Registrant provide that directors and officers of the
Registrant may be indemnified by the Registrant for acts taken by such
persons while acting in their capacities as officers or directors of the
Registrant to the extent that any such acts were taken in good faith and the
officer or director reasonably believed the acts to be in or not opposed to
the best interests of the Registrant, and, with respect to criminal action
or proceedings, the officer or director had no reasonable cause to believe
his conduct was unlawful. Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the 1933 Act and is,
therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following are exhibits to the Form S-8 Registration Statement.
Exhibit No. Name of Exhibit
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4.1 Form of Stock Certificate, incorporated by reference to
Exhibit 4.1 to the Registrant's Amendment No. 1 to Form SB-2
Registration Statement (No. 333-25257) as filed with the
Commission on May 30, 1997.
4.2 HORIZON Pharmacies, Inc. 1997 Stock Option Plan, incorporated
by reference to Exhibit 4.4 to the Registrant's Amendment No.
1 to Form SB-2 Registration Statement (No. 333-25257) as filed
with the Commission on May 30, 1997.
5.1 Opinion of Phillips McFall McCaffrey McVay & Murrah, P.C.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Howard & Waltrip, P.C.
23.3 Consent of Phillips McFall McCaffrey McVay & Murrah, P.C.
24.1 Power of Attorney (included as part of the Signature Page).
ITEM 9. UNDERTAKINGS.
(a) 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 1933 Act;
(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
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information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20% change in the maximum offering price set forth in the "Calculation
of Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the 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 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement;
(2) That, for the purpose of determining any liability under the
1933 Act, 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; and
(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) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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 the time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933
Act 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 1933 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 1933 Act and will be governed by
the final adjudication of such issue.
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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 requirement for filing on Form S-8 and has duly caused this Form
S-8 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Princeton, Texas, on this 18th day
of November, 1997.
HORIZON PHARMACIES, INC.
By: /s/ Ricky D. McCord
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Ricky D. McCord, President and Chief Executive Officer
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Ricky D. McCord as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him, and in
his name, place and stead, in any and all capacities to sign any or all
amendments or post-effective amendment 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 the
said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent, or his substitute, 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 below by the following persons, in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ Ricky D. McCord Chairman of the Board November 18, 1997
- ---------------------------------- of Directors, Chief
Ricky D. McCord Executive Officer and
PRINCIPAL EXECUTIVE OFFICER President
/s/ David W. Frauhiger Chief Financial November 18, 1997
- ---------------------------------- Officer, Treasurer
David W. Frauhiger
PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER
/s/ Charlie K. Herr Director November 18, 1997
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Charlie K. Herr
/s/ Carson A. McDonald Director November 18, 1997
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Carson A. McDonald
/s/ Robert D. Mueller Director November 18, 1997
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Robert D. Mueller
/s/ Sy S. Shahid Director November 18, 1997
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Sy S. Shahid
/s/ Phillip H. Yeilding Director November 18, 1997
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Phillip H. Yeilding
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EXHIBIT INDEX
Place at Which it Appears
Exhibit No. Name of Exhibit In Sequentially Numbered Pages
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4.1 Form of Stock Certificate. Incorporated by reference to
Exhibit 4.1 to the Registrant's
Amendment No. 1 to Form SB-2
Registration Statement (No.
333-25257), as filed with the
Commission on May 30, 1997.
4.2 HORIZON Pharmacies, Inc. 1997 Stock Incorporated by reference to
Option Plan. Exhibit 4.4 to Registrant's
Amendment No. 1 to Form SB-2
Registration Statement (No.
333-25257), as filed with the
Commission on May 30, 1997.
5.1 Opinion of Phillips McFall
McCaffrey McVay & Murrah, P.C.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Howard & Waltrip, P.C.
23.3 Consent of Phillips McFall
McCaffrey McVay & Murrah, P.C.
24.1 Power of Attorney. Included as part of the
Signature Page.
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Exhibit 5.1
November 18, 1997
HORIZON Pharmacies, Inc.
275 W. Princeton Drive
Princeton, Texas 75407
Re: HORIZON Pharmacies, Inc. (the "Company")
Form S-8 Registration Statement\
Our File No. 67114.00101
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Gentlemen:
We have acted as counsel to the Company in connection with the preparation
of the Registration Statement on Form S-8 (the "Registration Statement"), to be
filed by the Company with the Securities and Exchange Commission (the
"Commission"), relating to 246,243 shares (prior to giving effect to the 3-for-2
split of the Company's common stock having a record date of November 21, 1997)
of the Company's common stock, $.05 par value (the "Common Stock"), issuable
under the HORIZON Pharmacies, Inc.1997 Stock Option Plan (the "Plan").
Based on the foregoing, we are of the opinion that the shares of Common
Stock to be issued under the Plan are validly authorized and, upon issuance in
accordance with the terms of the Plan, will be legally issued, fully paid and
nonassessable.
We are members of the bar of the State of Oklahoma and do not hold
ourselves out as experts on, or as generally familiar with, or qualified to
express opinions under law other than the law of the State of Oklahoma, the
general corporate law of the State of Texas, and the law of the United States
and the opinion given herein is limited thereto.
Very truly yours,
PHILLIPS MCFALL MCCAFFREY MCVAY
& MURRAH, P.C.
/s/ Phillips McFall McCaffrey McVay &
Murrah, P.C.
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Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-_______) pertaining to the HORIZON Pharmacies, Inc. 1997
Stock Option Plan of our report dated April 4, 1997, except for the third and
fourth paragraphs of Note 6, as to which the date is May 31, 1997, with
respect to the 1996 financial statements of HORIZON Pharmacies, Inc. included
in Amendment No. 2 to the Registration Statement (Form SB-2 No. 333-25257)
and related Prospectus dated July 8, 1997, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Oklahoma City, Oklahoma
November 14, 1997
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Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 (No. 333-____________) pertaining to the HORIZON Pharmacies, Inc.
1997 Stock Option Plan with respect to our report on the financial statements
for the year ended December 31, 1995 of HORIZON Pharmacies, Inc. dated April
24, 1996 and our reports on the financial statements of the Farmington Store
Acquisition and the Vista Store Acquisition dated March 28, 1997 included in
Amendment No. 2 to the Registration Statement on Form SB-2 (No. 333-25257)
and the related Prospectus dated July 8, 1997 filed with the Securities and
Exchange Commission; and our reports on the financial statements of the
following businesses included in the Current Reports on Form 8-K and filed
with the Securities and Exchange Commission as indicated:
1. Report dated October 1, 1997 on the financial statements for the year
ended December 31, 1996 of Sun Country Drug, Inc. included in
Amendment No. 1 to Current Report on Form 8-K dated August 2, 1997
filed with the Securities and Exchange Commission on October 16, 1997;
2. Report dated October 19, 1997 on the financial statements for the year
ended December 31, 1996 of Revco Inc., dba Northridge Pharmacy, Inc.
included in Amendment No.1 to Quarterly Report on Form 10-QSB for the
fiscal quarter ended June 30, 1997 filed with the Securities and
Exchange Commission on October 24, 1997;
3. Report dated October 21, 1997 on the financial statements for the year
ended December 31, 1996 of Downey Drug, Inc., Inc. included in
Amendment No. 1 to Quarterly Report on Form 10-QSB for the fiscal
quarter ended June 30, 1997 filed with the Securities and Exchange
Commission on October 24, 1997;
4. Report dated November 7, 1997 on the financial statements for the year
ended December 31, 1996 of McCosh Drug, Inc., included in the Current
Report on Form 8-K/A filed with the Securities and Exchange Commission
on November 13, 1997.
Howard & Waltrip, P.C.
Certified Public Accountants
Dallas, Texas
November 18, 1997
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Exhibit 23.3
CONSENT OF COUNSEL
Phillips McFall McCaffrey McVay & Murrah, P.C., hereby consents to the
filing of its opinion of counsel as an exhibit to the Form S-8 Registration
Statement filed by HORIZON Pharmacies, Inc.
PHILLIPS MCFALL MCCAFFREY MCVAY & MURRAH, P.C.
/s/ Phillips McFall McCaffrey McVay & Murrah, P.C.
Oklahoma City, Oklahoma
November 18, 1997
