OMNICARE, INC.
COMMON STOCK
This Prospectus covers the offering for resale of shares (the
"Shares") of Common Stock of Omnicare, Inc. ("Omnicare" or the "Company") by
the Selling Stockholders named herein under "Selling Stockholders", who
acquired their Shares in connection with the acquisition by Omnicare of
certain assets of: 1) Western Avenue Pharmacy, Inc., a Massachussetts
corporation; 2) Genovese Drug Stores, Inc., a Delaware corporation;
3) Consulting and Pharmaceutical Services, Inc., a Washington corporation;
and 4) Shore Park Pharmacy Inc., a New York corporation. 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 Stockholders 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
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2
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.
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3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates in this Prospectus by
reference the Company's Annual Report on Form 10-K for the year ended December
31, 1994, heretofore filed with the Commission pursuant to the Exchange Act.
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 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
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4
federal regulations. In addition, the Company provides ancillary services, such
as infusion therapy, and distributes medical supplies to its client nursing
homes. The Company provides these services to approximately 167,200 residents in
approximately 1,890 nursing homes and other long-term care facilities in the
States of Alabama, 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 STOCKHOLDERS
Set forth below for each of the five Selling Stockholders, who
acquired Shares in connection with Omnicare's acquisition of certain of such
Selling Stockholder's assets, are the number of Shares that may be sold by such
Selling Stockholder hereunder.
Selling Stockholder Shares Owned
Western Avenue Pharmacy, Inc. F1 21,372
Genovese Drug Stores, Inc. F2 63,550
Consulting and Pharmaceutical Services, Inc. F3 63,424
Les Shafranek F4 22,138
William Gordon F4 22,138
- ------------------
FN
F1 Albert C. Sivo is the sole shareholder of Western
Avenue Pharmacy, Inc. ("Western") and the beneficial owner
of the Shares acquired in connection with the sale of
certain assets of Western to Omnicare.
F2 Genovese Drug Stores, Inc. is a reporting company
under the Exchange Act.
F3 Joseph J. Farina is the sole shareholder of
Consulting and Pharmaceutical Services, Inc. ("CPS") and the
beneficial owner of the Shares acquired in connection with
the sale of certain assets of CPS to Omnicare.
F4 Les Shafranek and William Gordon acquired their
shares in connection with the sale of certain assets of
Shore Park Pharmacy, Inc. to Omnicare.
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5
PLAN OF DISTRIBUTION
The Company is not aware of any plan of distribution with
respect to Selling Stockholders. Distribution of the Shares by the Selling
Stockholders 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 Stockholders 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
Stockholders 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 Stockholders and may receive
commissions from the purchasers of Shares for whom they may act as agent.
Pursuant to Registration Rights Agreements, Omnicare has agreed to indemnify the
Selling Stockholders 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
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6
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 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.
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7
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 .................................... $ 3,238
Legal fees and expenses .................................. $ 10,000
Accounting fees and expense............................... $ 2,500
Miscellaneous ............................................ $ 4,262
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.
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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) Certificate of Incorporation of the Company, as amended
(incorporated by reference to Exhibit 1 of the Company's 1994
Annual Report on Form 10-K).
3(b) Amendment to Certificate of Incorporation of the
Company, as amended (incorporated by reference to
Exhibit 2 of the Company's 1994 Annual Report on
Form 10-K).
3(c) 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.
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9
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;
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10
(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.
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11
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 28th day of
April, 1995.
OMNICARE, INC.
By:/s/Joel 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.
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Principal Executive Officers:
/s/Edward L. Hutton Chairman and April 28, 1995
- -------------------- Director
Edward L. Hutton
/s/Joel F. Gemunder President and April 28, 1995
- -------------------- Director
Joel F. Gemunder
Principal Financial and Accounting
Officer:
/s/Kurt H. Stump Senior Vice April 28, 1995
- ------------------- President and Chief
Kurt H. Stump Financial Officer
Directors of the Company:
/s/Ronald K. Baur April 28, 1995
- ---------------------
Ronald K. Baur
/s/Kenneth W. Chesterman April 28, 1995
- ------------------------
Kenneth W. Chesterman
/s/Charles H. Erhart, Jr. April 28, 1995
- -------------------------
Charles H. Erhart, Jr.
/s/Mary Lou Fox April 28, 1995
- -------------------------
Mary Lou Fox
/s/Cheryl D. Hodges April 28, 1995
- -------------------------
Cheryl D. Hodges
/s/Thomas C. Hutton April 28, 1995
- -------------------------
Thomas C. Hutton
II-6
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13
/s/Patrick E. Keefe April 28, 1995
- ------------------------
Patrick E. Keefe
/s/Sandra E. Laney April 28, 1995
- ------------------------
Sandra E. Laney
/s/Andrea R. Lindell April 28, 1995
- ------------------------
Andrea R. Lindell
/s/Sheldon Margen April 28, 1995
- ------------------------
Sheldon Margen
/s/Kevin J. McNamara April 28, 1995
- ------------------------
Kevin J. McNamara
/s/John M. Mount April 28, 1995
- ------------------------
John M. Mount
/s/Timothy S. O'Toole April 28, 1995
- ------------------------
Timoth S. O'Toole
/s/D. Walter Robbins, Jr. April 28, 1995
- -------------------------
D. Walter Robbins, Jr.
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<PAGE>
Sequentially
Numbered
Number Description Page
3(a) Certificate of Incorporation of
the Company, as amended (incorporated
by reference to Exhibit 1 of the Company's
1994 Annual Report on Form 10-K).
3(b) Amendment to Certificate of Incorporation
of the Company, as amended
(incorporated by reference to Exhibit 2
of the Company's 1994 Annual Report on
Form 10-K).
3(c) 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(c) Consent of Thompson, Hine and Flory
(contained in Exhibit 5).
*Filed herewith.
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<PAGE>
Exhibit 5
[Letterhead of]
THOMPSON, HINE AND FLORY
April 27, 1995
Omnicare, Inc.
2800 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202
Gentlemen:
Reference is made to the offering by certain stockholders of
Omnicare, Inc., a Delaware corporation (the "Company"), of up to
an aggregate of 192,622 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 comprised of
21,372 shares offered by Western Avenue Pharmacy, Inc., 63,550
shares offered by Genovese Drug Stores, Inc., 63,424 shares
offered by Consulting and Pharmaceutical Services, Inc., 22,138
offered by Les Shafranek, and 22,138 offered by William Gordon.
As counsel for the Company, we have examined and are
familiar with the Certificate of Incorporation of the Company 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 are duly authorized, validly issued,
fully paid and nonassessable.
<PAGE> 2
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.
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
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
April 28, 1995
