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REGISTRATION NO. 333-22765
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OMNICARE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE (PRIMARY STANDARD 31-1001351
(STATE OF INCORPORATION) INDUSTRIAL (I.R.S. EMPLOYER IDENTIFICATION
CLASSIFICATION CODE NO.)
NUMBER)
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50 East RiverCenter Blvd. -- Suite 1530
Covington, Kentucky 41011
(606) 655-1180
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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Cheryl D. Hodges
c/o Omnicare Management Company
2800 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4728
(513) 762-6666
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
Copies to:
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Morton A. Pierce John F. Bales, III
Dewey Ballantine LLP Morgan, Lewis & Bockius LLP
1301 Avenue of the Americas 2000 One Logan Square
New York, New York 10019 Philadelphia, Pennsylvania 19103
(212) 259-8000 (215) 963-5000
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Approximate date of commencement of proposed sale of the securities to the
public: Upon consummation of the Merger described herein.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Restriction G, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE(2)
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Common Stock
$1.00 par value....... 710,060 shares N/A $710,060 $215.17(3)
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(1) Represents the maximum number of shares of common stock of Omnicare, Inc.,
par value $1.00 per share, that the Registrant would issue in exchange for
the common stock of Coromed, Inc., par value $.01 per share, and in exchange
for options to acquire the common stock of Coromed, Inc.
(2) Calculated pursuant to Rule 457(f) under the Securities Act of 1933 based on
the par value of the maximum number of Omnicare shares to be issued.
(3) $557.83 was previously paid with the filing of the Form S-4 Registration
Statement on March 4, 1997.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE TIME 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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Omnicare Certificate provides that a director of Omnicare will not be
liable to Omnicare or its stockholders for monetary damages for breach of
fiduciary duty as a director, to the full extent permitted by the DGCL, as
amended or interpreted from time to time.
DGCL sec. 102(b)(7) allows a company to limit the personal liability of the
directors of the company for violations of their fiduciary duties. In effect, a
director will not be personally liable for monetary damages for actions
involving a breach of his fiduciary duty of care, including any such actions
involving gross negligence. However, a director's liability to the company or
its stockholders for monetary damages may not be eliminated or limited (i) for
any breach of the director's duty of loyalty to the company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of the law, (iii) for unlawful payment of
dividends or unlawful stock purchases or redemptions, or (iv) for any
transaction from which the director derived an improper personal benefit.
In addition, the Omnicare Certificate states that Omnicare shall, to the
full extent permitted by the DGCL, as amended or interpreted from time to time,
indemnify all directors, officers and employees whom it may indemnify pursuant
thereto and in addition, Omnicare may, to the extent permitted by the DGCL,
indemnify agents of Omnicare or other persons.
DGCL sec. 145 gives a corporation broad powers to indemnify officers,
directors and employees who were, are or are threatened to be made party to a
suit due to their roles as such or were serving at the request of the
corporation as a director, officer, or employee or agent of another entity at
the request of the corporation, against expenses (including attorneys' fees),
judgments, fines and settlement fees, if such person acted in good faith and in
a manner the person reasonably believed to be in or not opposed to the best
interest of the corporation. The indemnification allowed under DGCL sec. 145 is
not deemed exclusive of any other rights that such person may be entitled to
under any bylaw, agreement, vote of stockholders or disinterested directors.
DGCL sec. 145 also allows a corporation to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another entity against any liability
asserted against such person whether or not the corporation would have the power
to indemnify him against such liability under this section.
Omnicare carries Liability Insurance for its directors and officers.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
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2.1 -- Amended and Restated Agreement and Plan of Merger, dated as of August 19, 1997, by
and among Omnicare, Merger Sub, Coromed and certain Principal Stockholders of
Coromed. Attached as Appendix A to the Proxy Statement/Prospectus included in this
Registration Statement.
2.2 -- Support Agreement, dated as of January 27, 1997, by and among Omnicare and certain
Principal Stockholders of Coromed. Attached as Appendix B to the Proxy
2.3 -- Amendment No. 1, dated as of November 4, 1997, to the Amended and Restated Agreement
and Plan of Merger filed as Exhibit 2.1 hereto.*
3.1 -- Statement/Prospectus included in this Registration Statement. Restated Certificate
of Incorporation of Omnicare.(1)
3.2 -- Amended Bylaws of Omnicare.(2)
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4.1 -- Indenture, dated as of October 1, 1993, between Omnicare and NBD Bank, N.A.,
Trustee, as amended October 20, 1993, for the 5 3/4% Convertible Subordinated Notes
due 2003. Incorporated by reference from Registrant's Form 8-K, filed October 20,
1993.
5.1 -- Opinion of Dewey Ballantine.*
8.1 -- Opinion of Morgan, Lewis & Bockius LLP as to certain federal income tax matters.*
10.1 -- Executive Salary Protection Plan, as amended, May 22, 1981.(3)
10.2 -- 1981 Stock Incentive Plan, as amended. Incorporated by reference from Registrant's
Form 10-K, filed March 25, 1988.
10.3 -- 1989 Stock Incentive Plan. Incorporated by reference from Registrant's Proxy
Statement for 1989 Annual Meeting of Principal Stockholders dated April 10, 1989.
10.4 -- 1992 Long-Term Stock Incentive Plan. Incorporated by reference from Registrant's
Proxy Statement for 1992 Annual Meeting of Principal Stockholders dated April 6,
1992.
10.5 -- 1995 Premium-Priced Stock Option Plan. Incorporated by reference from Registrant's
Proxy Statement for 1995 Annual Meeting of Principal Stockholders dated April 10,
1995.
10.6 -- Excess Benefits Plan. Incorporated by reference from Registrant's Form 10-K, filed
March 25, 1988.
10.7 -- Asset Purchase Agreement, dated as of March 18, 1993, between Omnicare and Clar-Ron,
Inc. Incorporated by reference from Registrant's Form 8-K, filed April 7, 1993.
10.8 -- Asset Purchase Agreement, dated as of September 2, 1994, between Omnicare and
Evergreen Pharmaceutical, Inc. Incorporated by reference from Registrant's Form 8-K,
filed September 2, 1994.
10.9 -- Form of Indemnification Agreement with Directors and Officers. Incorporated by
reference from Registrant's Proxy Statement for 1987 Annual Meeting of Principal
Stockholders dated April 14, 1987.
10.10 -- Employment Agreements with J.F. Gemunder and C.D. Hodges dated August 4, 1988.
Incorporated by reference from Registrant's Form 10-K, filed March 29, 1989.
10.11 -- Amendment to Employment Agreements with J.F. Gemunder and C.D. Hodges dated May 17,
1993. Incorporated by reference from Registrant's Form 10-K, filed March 25, 1994.
10.12 -- Employment Agreement with T.R. Marsh dated August 4, 1988 and Amendment dated May
17, 1993. Incorporated by reference from Registrant's Form 10-K, filed March 25,
1994.
10.13 -- Employment Agreement with P.E. Keefe dated March 4, 1993. Incorporated by reference
from Registrant's Form 10-K, filed March 25, 1994.
10.14 -- Employment Agreement with K.W. Chesterman dated May 17, 1993. Incorporated by
reference from Registrant's Form 10-K, filed March 25, 1994.
10.15 -- Amendment to Employment Agreements with J.F. Gemunder, K.W. Chesterman, P.E. Keefe,
C.D. Hodges and T.R. Marsh dated May 16, 1994. Incorporated by reference from
Registrant's Form 10-K, filed March 25, 1995.
10.17 -- Split Dollar Agreement with E.L. Hutton dated June 1, 1995 (Agreement in the same
Form exists with J.F. Gemunder).(3)
10.18 -- Split Dollar Agreement with K.W. Chesterman dated June 1, 1995 (Agreements in the
same Form exists with the following Executive Officers: C.D. Hodges and P.E.
Keefe).(3)
10.19 -- Agreement and Plan of Merger by and among Omnicare, Omnicare Acquisition Corp. and
American Medserve Corporation dated as of August 7, 1997.(4)
11.1 -- Statement re computation of per share earnings of Omnicare.*
11.2 -- Statement re computation of per share earnings of Coromed.*
21.1 -- Subsidiaries of the Registrant.(3)
23.1 -- Consent of Dewey Ballantine (included as part of its opinion filed as Exhibit 5.1
hereto).
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23.2 -- Consent of Morgan, Lewis & Bockius LLP (included as part of its opinion filed as
Exhibit 8.1 hereto).
23.3 -- Consent of Coopers & Lybrand L.L.P.*
23.4 -- Consent of Price Waterhouse LLP.*
23.5 -- Consent of Wessels, Arnold & Henderson, L.L.C.**
24.1 -- Power of Attorney, included as part of the Signature page in this Registration
Statement.*
99.1 -- Form of Proxy for holders of Coromed Common Stock.*
99.2 -- Form of Letter to Coromed stockholders.*
99.3 -- Form of Notice to Coromed stockholders.*
99.4 -- Fairness Opinion of Wessels, Arnold & Henderson, L.L.C. Attached as Appendix D to
the Proxy Statement/Prospectus included in this Registration Statement.
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(b) FINANCIAL STATEMENT SCHEDULES
Schedule II -- Valuation & Qualifying Accounts*
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* Filed previously
** Filed herewith
(1) Incorporated by reference from Registrant's Registration Statement on Form
S-3, Registration No. 33-59689.
(2) Incorporated by reference from Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1992.
(3) Incorporated by reference from Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995.
(4) Incorporated by reference from Item 11(c) of Registrant's Tender Offer
Statement on Schedule 14D-1 filed with the Commission on August 14, 1997.
ITEM 22. UNDERTAKINGS.
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.
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 a 20% change in the maximum
aggregate 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;
(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.
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The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 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.
The undersigned registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other Items of the applicable form.
The registrant undertakes that every prospectus (i) that is filed pursuant
to the immediately preceding paragraph or (ii) that purports to meet the
requirements of section 10(a)(3) of the Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes 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.
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 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 expense 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 to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this amendment to the Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Cincinnati, State
of Ohio, on this 12th day of November, 1997.
November 12, 1997
OMNICARE, INC.
/s/ JOEL F. GEMUNDER
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Joel F. Gemunder, President
Pursuant to the requirements of the Securities Act, this amendment to the
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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* Chairman and Director November 12, 1997
- ---------------------------------------- (Principal Executive
Edward L. Hutton Director)
* President and Director November 12, 1997
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Joel F. Gemunder
* Senior Vice President and November 12, 1997
- ---------------------------------------- Chief Financial Office
David W. Froesel, Jr. (Principal Financial Officer
and Principal Accounting
Officer)
* Director November 12, 1997
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Ronald K. Bauer
* Director November 12, 1997
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Kenneth W. Chesterman
* Director November 12, 1997
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Charles H. Erhart, Jr.
* Director November 12, 1997
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Mary Lou Fox
/s/ CHERYL HODGES Director November 12, 1997
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Cheryl Hodges
* Director November 12, 1997
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Thomas C. Hutton
* Director November 12, 1997
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Patrick E. Keefe
* Director November 12, 1997
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Sandra E. Laney
* Director November 12, 1997
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Andrea R. Lindell
* Director November 12, 1997
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Sheldon Margen, M.D.
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SIGNATURE TITLE DATE
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* Director November 12, 1997
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Kevin J. McNamara
* Director November 12, 1997
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John M. Mount
* Director November 12, 1997
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D. Walter Robbins, Jr.
/s/ Cheryl D. Hodges
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* By Cheryl D. Hodges as
attorney-in-fact.
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Exhibit 23.5
[Letterhead of Wessels, Arnold & Henderson, L.L.C.]
Consent of Wessels, Arnold & Henderson, L.L.C.
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We hereby consent to the use of our opinion letter dated August 14, 1997,
to the Board of Directors of COROMED, Inc. included as Exhibit D to the Proxy
Statement/Prospectus which forms a part of the Registration Statement on Form
S-4 relating to the proposed merger of COROMED, Inc. with COROMED Acquisition
Corporation, a wholly owned subsidiary of Omnicare, Inc. and to the references
to such opinion in such Proxy Statement/Prospectus under the captions
"Summary--The Merger--Fairness Opinion," "The Merger--Background of the
Merger," "The Merger - Reasons for the Merger" and "The Merger--Fairness
Opinion."
WESSELS, ARNOLD & HENDERSON, L.L.C.
BY: /s/ Bryson D. Hollimon
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Bryson D. Hollimon
Managing Director and
Head of Investment Banking
November 12, 1997
