Registration No. 33-
=====================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
OMNICARE, INC.
(Exact name of registrant as specified in its charter)
----------------
Delaware 31-1001351
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2800 Chemed Center, 255 East Fifth Street,
Cincinnati, Ohio 45202; (513) 762-6666
(Address, including zip code, and
telephone number, including area code,
of registrant's principal executive offices)
Cheryl D. Hodges, 2800 Chemed Center, 255 E. Fifth Street
Cincinnati, Ohio 45202; (513) 762-6666
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Robert Rosenman
Cravath, Swaine & Moore
Worldwide Plaza, 825 Eighth Avenue
New York, New York 10019
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the Registration Statement becomes effective.
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, please check the following box: |X|
---------------------------
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed
Proposed Maximum
Title of Each Class Amount Maximum Aggregate
of Securities to be to be Offering Price Offering Amount of
Registered Registered Per Share (2) Price (2) Registration Fee
- --------------------------------------------------------------------------------
Common Stock.... 440,000 shares(1) $23.5625 $10,367,500 $3,575
================================================================================
(1) Includes 220,000 shares issuable upon a two-for-one split of the Common
Stock to take effect on June 21, 1995.
(2) Estimated solely for the purpose of calculating the registration fee,
based upon the closing price of the Common Stock on the New York Stock
Exchange Composite Tape on May 26, 1995. For purposes of calculating the
registration fee, the closing price of the Common Stock has been divided
by two to adjust for a two-for-one split to take effect on June 21, 1995.
---------------------------
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 said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
OMNICARE, INC.
COMMON STOCK
This Prospectus covers the offering for resale of 440,000
shares (the "Shares") of Common Stock of Omnicare, Inc. ("Omnicare" or the
"Company") by Gary W. Kadlec (the "Selling Stockholder"), who acquired the
Shares in connection with the acquisition by Omnicare of all of the
outstanding stock of Specialized Pharmacy Services, Inc., a Michigan
corporation ("SPS"). Omnicare will not receive any proceeds from the sale
of the Shares covered by this Prospectus.
The Common Stock is listed on the New York Stock Exchange
under the symbol OCR.
The Shares covered by this Prospectus may be offered for
sale from time to time on the New York Stock Exchange or otherwise, at
prices then obtainable. The Company has agreed to indemnify the Selling
Stockholder against certain liabilities, including liabilities under the
Securities Act of 1933 (the "Act"). See "Plan of Distribution".
Certain persons who sell the Shares covered by
this Prospectus, and any broker or dealer to or through whom
any such person shall sell such securities, may be deemed to
be underwriters within the meaning of the Act with respect
to the sale of such securities.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-------------------
The date of this Prospectus is [ ], 1995
<PAGE>
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN
AUTHORIZED BY THE COMPANY TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN AS CONTAINED IN THIS PROSPECTUS IN CONNECTION
WITH THE OFFERING DESCRIBED HEREIN. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER OR A SOLICITATION WITHIN ANY STATE TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
AVAILABLE INFORMATION
Omnicare is subject to the information requirements of
the Securities Exchange Act of 1934 (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). These reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at its principal offices
at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's regional offices located at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661, and 7 World Trade
Center, Suite 1300, New York, New York 10048. Copies of such materials can
also be obtained from the Public Reference Section of the Commission at
prescribed rates at the principal offices of the Commission at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. The Company's Common
Stock is listed on the New York Stock Exchange (Symbol: OCR), and reports
and information concerning the Company can be inspected at such exchange,
20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration
Statement on Form S-3 under the Act with respect to the Common Stock
offered hereby (including all amendments and supplements thereto, the
"Registration Statement"). This Prospectus, which forms a part of the
Registration Statement, does not contain all the information set forth in
the Registration Statement, certain parts of which have been omitted in
accordance with the rules and regulations of the Commission. Statements
contained herein concerning the provisions of such documents are not
necessarily complete and, in each instance, reference is made to the copy
of such document filed as an exhibit to the Registration Statement or
otherwise filed with the Commission. Each such statement is qualified in
its entirety by such reference. The Registration Statement and the exhibits
thereto can be inspected and copied at the public reference facilities and
regional offices referred to above.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates in this Prospectus by
reference the following documents heretofore filed with the Commission
pursuant to the Exchange Act: (i) the Company's Annual Report on Form 10-K
for the year ended December 31, 1994,; (ii) the Company's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1995; and (iii) the Company's
Current Report on Form 8-K, filed [ ], 1995.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to termination of this offering shall be deemed
to be incorporated in this Prospectus by reference and to be a part hereof
from the respective dates of the filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for
purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is, or is deemed to be,
incorporated by reference herein, modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute part of this Prospectus.
The Company hereby undertakes to provide without charge
to each person to whom a copy of this Prospectus has been delivered, upon
the written or oral request of any such person, a copy of any and all of
the documents referred to above which have been or may be incorporated in
this Prospectus by reference, other than exhibits to such documents which
are not specifically incorporated by reference into such documents.
Requests for such copies should be directed to Cheryl D. Hodges, Secretary,
Omnicare, Inc., 2800 Chemed Center, 255 East Fifth Street, Cincinnati, Ohio
45202-4728, or telephone (513) 762-6666.
THE COMPANY
Omnicare is a leading independent provider of pharmacy services to
long-term care institutions such as nursing homes, retirement centers and other
institutional health care facilities. The Company purchases, repackages and
dispenses prescription and non-prescription medication, and provides
computerized medical recordkeeping and third- party billing for patients in
such facilities. The Company
<PAGE>
also provides consultant pharmacist services, including monthly patient
drug therapy evaluations, monitoring the control, distribution and
administration of drugs within the nursing facility and assistance in
compliance with state and federal regulations. In addition, the Company
provides ancillary services, such as infusion therapy, and distributes
medical supplies to its client nursing homes. The Company, including SPS,
provides these services to approximately 186,400 residents in approximately
2,050 nursing homes and other long-term care facilities in the States of
Alabama, Idaho, Illinois, Indiana, Kansas, Kentucky, Massachusetts,
Michigan, Missouri, Montana, New York, Ohio, Oklahoma, Oregon, Washington
and West Virginia.
The Company's executive offices are located at 2800
Chemed Center, 255 East Fifth Street, Cincinnati, Ohio 45202-4728, and its
telephone number is (513) 762-6666.
SELLING STOCKHOLDER
Gary W. Kadlec, the Selling Stockholder hereunder,
acquired 440,000 shares of Common Stock in connection with Omnicare's
acquisition of SPS. All of such Shares may be sold by the Selling
Stockholder hereunder.
PLAN OF DISTRIBUTION
The Company is not aware of any plan of distribution with
respect to Selling Stockholder. Distribution of the Shares by the Selling
Stockholder may be effected from time to time in one or more transactions
(which may involve block transactions) (i) on the New York Stock Exchange,
(ii) in the over-the-counter market, (iii) in transactions otherwise than
on such exchange or in the over-the-counter market or (iv) in a combination
of any such transactions. Such transactions may be effected by the Selling
Stockholder at market prices prevailing at the time of sale, at prices
related to such prevailing market prices, at negotiated prices or at fixed
prices. The Selling Stockholder may effect such transactions by selling
Shares to or through broker-dealers, and such broker-dealers may receive
compensation in the form of discounts or commissions from the Selling
Stockholder and may receive commissions from the purchasers of Shares for
whom they may act as agent. Pursuant to the Acquistion Agreement dated May
15, 1995 between Omnicare and the Selling Stockholder, Omnicare
<PAGE>
has agreed to indemnify the Selling Stockholder against certain civil
liabilities, including liabilities under the Securities Act.
DESCRIPTION OF COMMON STOCK
The Common Stock has no preemptive rights and no
redemption, sinking fund or conversion provisions. All shares of Common
Stock have one vote on any matter submitted to the vote of stockholders.
The Common stock does not have cumulative voting rights. Upon any
liquidation of the Company, the holders of Common Stock are entitled to
receive, on a pro rata basis, all assets then legally available for
distribution after payment of debts and liabilities and preferences on
preferred stock, if any. Holders of Common Stock are entitled to receive
dividends when and as declared by the Board of Directors out of funds
legally available therefor (subject to the prior rights of preferred stock,
if any). All shares of Common Stock are fully paid and nonassessable. The
Board of Directors, without further action by the stockholders, is
authorized to issue preferred stock in one or more series and to designate
as to any such series the dividend rate, redemption prices, preferences on
liquidation or dissolution sinking fund terms, conversion rights, voting
rights and any other preferences or special rights and qualifications.
With certain exceptions, in the event another person owns
10% or more of the Company's stock entitled to vote, a majority of the
shares not so owned is required to authorize (1) any merger of the Company
with such person, (2) any sale, lease or other disposition of all or
substantially all of the Company's assets to such person, (3) certain
issuances and transfers of securities of the Company to such person.
Directors may be removed without cause only by the affirmative vote of the
holders of two-thirds of the Company's capital stock entitled to vote on
the election of directors. The Board of Directors of the Company, when
evaluating any offer of another person to make a tender or exchange offer,
merge or purchase or otherwise acquire all or substantially all of the
assets of the Company, shall, in connection with the exercise of its
judgment in determining what is in the best interests of the Company and
its stockholders, give due consideration to all relevant factors, including
the social and economic effects on employees, customers, suppliers and
other constituents of Omnicare and on the communities in which Omnicare
operates or is located. The sections of the Company's Certificate of
Incorporation described in this paragraph may not be
<PAGE>
altered, amended or repealed without approval of two-thirds of the
outstanding shares of each class entitled to vote thereon as a class.
EXPERTS
The audited financial statements incorporated in this
Prospectus by reference to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 have been so incorporated in reliance
on the report of Price Waterhouse LLP, independent accountants, given on
the authority of said firm as experts in auditing and accounting.
LEGAL MATTERS
The validity of the issuance of the Shares offered hereby has been
passed upon for the Company by Thompson, Hine and Flory.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following is an itemized statement of the expenses (all but
the SEC fees are estimates) in connection with the issuance of the Shares
being registered hereunder. All such expenses will be borne by the Company.
SEC Registration fees ................................ $ 3,575
Legal fees and expenses .............................. $10,000
Accounting fees and expenses ......................... $ 2,500
Miscellaneous ........................................ $ 3,925
Total ........................................... $20,000
Item 15. Indemnification of Directors and Officers
The Certificate of Incorporation and Bylaws of Omnicare, and
separate Indemnification Agreements, provide for the indemnification of
each director and officer of Omnicare in connection with any claim, action,
suit or proceeding brought or threatened by reason of his or her position
with Omnicare. In addition, the General Corporation Law of the State of
Delaware ("Delaware Law") permits Omnicare 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 Corporation'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.
<PAGE>
Item 16. Exhibits.
Each of the following Exhibits is filed or incorporated by
reference in this Registration Statement.
Exhibit
Number Description of Exhibit
3(a) Restated Certificate of Incorporation of the
Company.*
3(b) By-laws of the Company, as amended (incorporated
by reference to Exhibit 3 of the Company's 1994
Annual Report on Form 10-K).
5 Opinion of Thompson, Hine and Flory with respect
to the legality of the securities being
registered.*
23(a) Consent of Price Waterhouse LLP.*
23(b) Consent of Thompson, Hine and Flory (contained in
Exhibit 5).
*Filed herewith.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 (the "Act"),
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (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 that time shall be deemed to be the initial
bona fide offering thereof.
<PAGE>
Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions described under Item 15
above, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against
public policy as expressed in the 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.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(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 (i) and (ii) above 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 section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement;
<PAGE>
(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; 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.
The undersigned registrant hereby undertakes that: (1) For
purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective; and (2)
For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus
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.
<PAGE>
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 a 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 Cincinnati, State of Ohio on the
30th day of May, 1995.
OMNICARE, INC.
By: /s/ Joel F. Gemunder
---------------------------
Joel F. Gemunder, President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person 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 amendment or amendments to this Registration Statement on Form S-3, and
to perform any acts necessary to be done in order to file such amendment
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.
<PAGE>
Principal Executive Officers:
/s/ Edward L. Hutton Chairman and May 30, 1995
______________________ Director
Edward L. Hutton
/s/ Joel F. Gemunder President and May 30, 1995
______________________ Director
Joel F. Gemunder
Principal Financial and Accounting
Officer:
/s/ Kurt H. Stump Senior Vice May 30, 1995
_____________________ President and Chief
Kurt H. Stump Financial Officer
Directors of the Company:
/s/ Ronald K. Baur May 30, 1995
- ---------------------
Ronald K. Baur
/s/ Kenneth W. Chesterman May 30, 1995
- ---------------------
Kenneth W. Chesterman
/s/ Charles M. Erhart, Jr. May 30, 1995
- ----------------------
Charles H. Erhart, Jr.
/s/ Mary Lou Fox May 30, 1995
- ---------------------
Mary Lou Fox
/s/ Cheryl D. Hodges May 30, 1995
- ---------------------
Cheryl D. Hodges
/s/ Thomas C. Hutton May 30, 1995
- ---------------------
Thomas C. Hutton
<PAGE>
/s/ Patrick E. Keefe May 30, 1995
- ---------------------
Patrick E. Keefe
/s/ Sandra E. Laney May 30, 1995
- ---------------------
Sandra E. Laney
/s/ Andrea R. Landell May 30, 1995
- ---------------------
Andrea R. Lindell
/s/ Sheldon Margen May 30, 1995
- ---------------------
Sheldon Margen
/s/ Kevin J. McNamara May 30, 1995
- ---------------------
Kevin J. McNamara
/s/ John M. Mount May 30, 1995
- ---------------------
John M. Mount
/s/ Timothy S. O'Toole May 30, 1995
- ---------------------
Timothy S. O'Toole
/s/ D. Walter Robbins, Jr. May 30, 1995
- ---------------------
D. Walter Robbins, Jr.
<PAGE>
Sequentially
Exhibit Numbered
Number Description Page
3(a) Restated Certificate of
Incorporation of the Company.<F1>
3(b) By-laws of the Company, as
amended (incorporated by
reference to Exhibit 3 of the
Company's 1994 Annual Report on
Form 10-K).
5 Opinion of Thompson, Hine and
Flory with respect to the
legality of the securities being
registered.<F1>
23(a) Consent of Price
Waterhouse LLP.<F1>
23(c) Consent of Thompson, Hine and
Flory (contained in Exhibit 5).
[FN]
<F1> Filed herewith.
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
OMNICARE, INC.
1. The name of the corporation is OMNICARE, INC.
2. The address of its registered office in the State of
Delaware is No. 100 West Tenth Street, in the City of
Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust
Company.
3. The nature of the business or purposes to be conducted or
promoted is:
To engage in any lawful act or activity for which
corporations may be organized under the General
Corporation Law of Delaware.
4. The total number of shares of stock which the Corporation
shall have authority to issue is Forty-Five Million
(45,000,000), of which Forty-Four Million (44,000,000)
shares of the par value of One Dollar ($1.00) each,
amounting in the aggregate to Forty-Four Million Dollars
($44,000,000), shall be common stock and of which One
Million (1,000,000) shares, without par value, shall be
preferred stock.
Authority is hereby expressly granted to and vested in the Board
of Directors at any time, or from time to time, to issue the
preferred stock in one or more series and, in connection with the
creation of each such series, to fix by the resolution or
resolutions providing for the issue of shares thereof the number
of shares to be included in such series; the dividend rate; the
redemption price or prices if any; the terms and conditions of the
redemption of or purchase of the shares of such series; the terms
and conditions on which such shares are convertible into common
stock or any other securities, if they are convertible; and any
and all other designations, preferences and relative,
participating, optional, voting or other special rights and
qualifications, limitations or restrictions thereof, of such
<PAGE>
series, to the full extent now or hereafter granted by the laws of
the State of Delaware.
5. A. The name and mailing address of each incorporator is as
follows:
NAME MAILING ADDRESS
K. L. Husfelt 100 West Tenth Street
Wilmington, Delaware 19801
B. A. Schuman 100 West Tenth Street
Wilmington, Delaware 19801
M. A. Ferrucci 100 West Tenth Street
Wilmington, Delaware 19801
B. The name and mailing address of each person, who is to serve as
a director until the first annual meeting of the stockholders or
until a successor is elected and qualified is as follows:
NAME MAILING ADDRESS
E. L. Hutton 1200 DuBois Tower
Cincinnati, Ohio 45202
W. F. Johnson 1200 DuBois Tower
Cincinnati, Ohio 45202
J. L. Kenrich 1200 DuBois Tower
Cincinnati, Ohio 45202
6. The corporation is to have perpetual existence.
7. In furtherance and not in limitation of the powers conferred
by statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
8. Elections of directors need not be by written ballot unless
the by-laws of the corporation shall so provide.
<PAGE>
Meetings of stockholders may be held within or without the State
of Delaware, as the by-laws may provide. The books of the
corporation may be kept (subject to any provision contained in the
statutes) outside the State of Delaware at such place or places as
may be designated from time to time by the board of directors or
in the by-laws of the corporation.
9. A. Except as otherwise expressly provided in Clause B of
this Paragraph 9:
(i) any merger or consolidation of the Corporation with or
into any other corporation;
(ii) any sale, lease, exchange or other disposition of all or any
substantial part of the assets of the Corporation to or with any
other corporation, person or other entity;
(iii) the issuance or transfer of any securities of the
Corporation to any other corporation, person or other entity in
exchange for assets or securities or a combination thereof (except
assets or securities or a combination thereof so acquired in a
single transaction or a series of related transactions having an
aggregate fair market value of less than $5,000,000); or
(iv) the issuance or transfer of any securities of the Corporation to
any other corporation, person or other entity for cash;
shall require the affirmative vote of the holders of at least a
majority of the outstanding shares of capital stock of the
Corporation which are not beneficially owned by such other
corporation, person or other entity if, as of the record date for
the determination of stockholders entitled to notice thereof and
to vote thereon, such other corporation, person or entity is the
beneficial owner, directly or indirectly, of 10% or more of the
outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of Directors, considered for the
purposes of this Paragraph 9 as one class. Such affirmative vote
shall be required notwithstanding the fact that no vote may be
required, or that some lesser percentage may be
<PAGE>
specified, by law or in any agreement with any national securities
exchange.
B. The provisions of this Paragraph 9 shall not apply to any
transaction described in clauses (i), (ii), (iii) or (iv) of Clause A of
this Paragraph 9, (i) with another corporation if a majority, by vote, of
the outstanding shares of all classes of capital stock of such other
corporation entitled to vote generally in the election of Directors,
considered for this purpose as one class, is owned of record or
beneficially by the Corporation and/or its subsidiaries; (ii) with another
corporation, person or other entity if the Board of Directors of the
Corporation shall by resolution have approved a memorandum of
understanding with such other corporation, person or other entity with
respect to and substantially consistent with such transaction prior to
the time such other corporation, person or other entity became the
beneficial owner, directly or indirectly, of 10% or more of the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of Directors; or (iii) approved by resolution
unanimously adopted by the whole Board of Directors of the Corporation at
any time prior to the consummation thereof.
C. For the purposes of this Paragraph 9, a corporation,
person or other entity shall be deemed to be the beneficial
owner of any shares of capital stock of the Corporation (i) which
it has the right to acquire pursuant to any agreement, or upon
exercise of conversion rights, warrants or options, or otherwise;
or (ii) which are beneficially owned, directly or indirectly
(including shares deemed owned through application of clause (i)
above), by any other corporation, person or other entity with
which it or its 'affiliate' or 'associate' (as defined below) has
any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of capital stock of the
Corporation or which is its 'affiliate' or 'associate' as those
terms were defined in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934 as in effect
on May 14, 1981. For the purposes of this Paragraph 9, the
outstanding shares of any class of capital stock of the
Corporation shall include shares deemed owned
<PAGE>
through the application of clauses (i) and (ii) of this Clause C but shall
not include any other shares which may be issuable pursuant to any
agreement, or upon exercise of conversion rights, warrants or
options, or otherwise.
D. The Board of Directors of the Corporation shall have the power
and duty to determine for the purposes of this Paragraph 9, on the
basis of information then known to it, whether (i) any other
corporation, person or other entity beneficially owns, directly or
indirectly, 10% or more of the outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of
Directors, or is an 'affiliate' or 'associate' (as defined above)
of another, (ii) any proposed sale, lease, exchange or other
disposition of part of the assets of the Corporation involves a
substantial part of the assets of the Corporation, (iii) assets or
securities, or a combination thereof, to be acquired in exchange
for securities of the Corporation, have an aggregate fair market
value of less than $5,000,000 and whether the same are proposed to
be acquired in a single transaction or a series of related
transactions, and (iv) the memorandum of understanding referred to
above is substantially consistent with the transaction to which it
relates. Any such determination by the Board shall be conclusive
and binding for all purposes of this Paragraph 9.
10. A Director or the entire Board of Directors of the
Corporation may be removed without cause only by the holders
of two-thirds of the shares then entitled to vote at an
election of Directors, notwithstanding any provision of the
General Corporation Law of the State of Delaware which may
provide for such action to be taken by the holders of a
lesser percentage of such shares. For purposes of this
Section, the term "cause" shall mean (i) negligence or
misconduct in the performance of his duties to the
Corporation by a Director if he did not act in good faith
and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation; or
(ii) the commission of an unlawful act by a Director
which was committed in the capacity or a Director,
officer, employee or agent of the Corporation provided he
had reasonable cause to believe that his conduct was
unlawful.
<PAGE>
11. To the full extent permitted by the General Corporation Law
of the State of Delaware, as amended or interpreted from
time to time, a director of the corporation shall not be
liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director. Neither
the amendment nor repeal of this Article Eleven, nor the
adoption of any other provision of this certificate of
incorporation that is inconsistent with this Article Eleven,
shall eliminate or reduce the effect of this Article Eleven
with respect to any matter occurring, or any cause of
action, suit or claim that but for this Article Eleven would
accrue or arise prior to such amendment, repeal or adoption.
12. The Corporation shall, to the full extent permitted by the General
Corporation Law of the State of Delaware, as amended or interpreted from
time to time, indemnify all Directors, officers and employees whom it may
indemnify pursuant thereto; and the Corporation may, to the full extent
permitted thereby, indemnify agents of the Corporation or other persons.
13. The Board of Directors of the Corporation, when evaluating any offer of
another party to (i) make a tender or exchange offer for any equity
security of the Corporation, (ii) merge or consolidate the Corporation with
another corporation, or (iii) purchase or otherwise acquire all or
substantially all of the properties and assets of the Corporation, shall,
in connection with the exercise of its judgment in determining what is in
the best interests of the Corporation and its stockholders, give due
consideration to all relevant factors, including without limitation the
social and economic effects on the employees, customers, suppliers and
other constituents of the Corporation and its subsidiaries and on the
communities in which the Corporation and its subsidiaries operate or are
located.
14. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in its Certificate of Incorporation, in the
manner now or hereafter provided by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
Notwithstanding the foregoing, Paragraphs 7, 9, 10, 11 and 12 of the
Corporation's Certificate or Incorporation may not be
<PAGE>
altered, amended or repealed unless two-thirds of the outstanding
stock of each class entitled to vote thereon as a class, have been voted
in favor of such action.
<PAGE>
May 30, 1995
Omnicare, Inc.
2800 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202
Ladies and Gentlemen:
Reference is made to the offering by a certain stockholder (the
"Stockholder") of Omnicare, Inc., a Delaware corporation (the "Company"),
of up to an aggregate of 440,000 shares of the Company's Common Stock, par
value $1.00 per share (the "Shares"), pursuant to a Registration Statement
on Form S-3 to be filed under the Securities Act of 1933 (the "Registration
Statement"). The Shares are to be acquired by the Stockholder pursuant to
an Acquisition Agreement dated May 15, 1995 between Omnicare and the
Stockholder (the "Acquisition Agreement").
As counsel for the Company, we have examined and are familiar with
the Company's Restated Certificate of Incorporation and By-Laws, as
amended, and various corporate records and proceedings relating to the
organization of the Company and the issuance of the Shares. Based upon the
foregoing and upon investigation of such other matters as we consider
appropriate to permit us to render an informed opinion, it is our opinion
that:
1. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware.
2. The Shares have been duly authorized and, when issued
in accordance with the Acquisition Agreement, will be validly
issued, fully paid and nonassessable.
This opinion is solely for your information in connection with the
Registration Statement and is not to be quoted or otherwise referred to in
any of your financial statements or public releases, filed with any
governmental agency, or given to any other person without our prior written
consent. This opinion may not be relied upon by any other person, or used
by you for any other purpose, without our prior written consent.
<PAGE>
Omnicare, Inc.
May 30, 1995
Page 2
We consent to the use of this opinion as an Exhibit to the
Registration Statement, and we consent to the reference to our firm under
the caption "Legal Matters" in the Prospectus forming a part of the
Registration Statement.
Very truly yours,
/s/ Thompson, Hine and Flory
THOMPSON, HINE AND FLORY
<PAGE>
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated February 1, 1995 appearing on page 19 of the Company's Annual Report
on Form 10-K for the year ended December 31, 1994. We also consent to the
incorporation by reference of our report on the Financial Statement
Schedule, which appears on page S-1 of such Annual Report on Form 10-K. We
also consent to the reference to us under the heading "Experts" in such
Prospectus.
/s/ PRICE WATERHOUSE LLP
Cincinnati, Ohio
May 30, 1995
