<PAGE> 1
As filed with the Securities and Exchange Commission on March 17, 1998
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
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 Identification No.)
incorporation or organization)
50 East RiverCenter Blvd. -- Suite 1530
Covington, Kentucky 41011
(Address of Principal Executive Offices) (Zip Code)
Warrants dated January 15, 1998 Issued by Omnicare, Inc.
to each of Ed Kaufman, Sheila K. Fiepke, Carol A. King,
Karl A. Kalas, Lawrence Wayne, Greg Schoonover and Irwin Berkley
(Full title of the Plan)
Cheryl D. Hodges
c/o Omnicare Management Company
2800 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4728
(Name and address of agent for service)
(513) 762-6666
(Telephone number, including area code, of agent for service)
copy to:
Joseph M. Rigot, Esq.
Thompson Hine & Flory LLP
2000 Courthouse Plaza, N.E.
P.O. Box 8801
Dayton, Ohio 45401-8801
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Title of securities Proposed maximum offering Proposed maximum
to be registered Amount to be registered price per share(1) aggregate offering price(1) Amount of registration fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 80,000 shares $30.8438 $2,467,504 $727.91
par value $1.00
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1)Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(h), based on the exercise price of the Warrants.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed with the Commission pursuant
to the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated
herein by reference:
(a) The Annual Report of Omnicare, Inc. (the "Company") on
Form 10-K for the year ended December 31, 1996;
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 1996; and
(c) The description of the Company's Common Stock set forth in
the Company's Registration Statement on Form 8-A/A-1 (File No. 1-8269)
filed with the Commission on April 17, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all Common Stock offered hereunder
has been sold or which deregisters all Common Stock then remaining unsold
hereunder shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained herein, or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation and Bylaws of the Company,
and separate Indemnification Agreements, provide for the indemnification of each
director and officer of the Company in connection with any claim, action, suit
or legal proceeding brought or threatened by reason of his or her position with
the Company. In addition, the General Corporation Law of the State of Delaware
("Delaware Law") permits the Company to indemnify its directors, officers
2
<PAGE> 3
and others against judgments, fines, amounts paid in settlement and attorneys'
fees resulting from various types of legal actions or proceedings if the actions
of the party being indemnified meet the standards of conduct specified in the
Delaware Law.
The Company's directors and officers are, in addition, insured against
loss arising from any claim against them or a wrongful act or omission with
certain exceptions and limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits following the signature pages.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3
<PAGE> 4
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cincinnati, State of Ohio, on the 16th day of March,
1998.
OMNICARE, INC.
By /s/ Joel F. Gemunder
-------------------------------
Joel F. Gemunder
President
4
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Edward L. Hutton, Joel
F. Gemunder and Cheryl D. Hodges, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
and each with power to act alone, to sign and execute on behalf of the
undersigned any and all amendments or supplements to this Registration
Statement, and to perform any acts necessary to be done in order to file any and
all such amendments and supplements with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, and each of
the undersigned does hereby ratify and confirm all that said attorneys-in-fact
and agents, or their substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Edward L. Hutton Chairman and Director March 16, 1998
- ----------------------------- (Principal Executive Director)
Edward L. Hutton
/s/ Joel F. Gemunder President and Director March 16, 1998
- ----------------------------- (Principal Executive Officer)
Joel F. Gemunder
Senior Vice President and
/s/ David W. Froesel, Jr. Chief Financial Officer March 16, 1998
- ----------------------------- (Principal Financial Officer and
David W. Froesel, Jr. Principal Accounting Officer)
/s/ Ronald K. Baur Director March 16, 1998
- -----------------------------
Ronald K. Baur
/s/ Kenneth W. Chesterman Director March 16, 1998
- -----------------------------
Kenneth W. Chesterman
/s/ Charles H. Erhart, Jr. Director March 16, 1998
- -----------------------------
Charles H. Erhart, Jr.
/s/ Mary Lou Fox Director March 16, 1998
- -----------------------------
Mary Lou Fox
</TABLE>
5
<PAGE> 6
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Cheryl D. Hodges
- -----------------------------
Cheryl D. Hodges Director March 16, 1998
/s/ Thomas C. Hutton Director March 16, 1998
- -----------------------------
Thomas C. Hutton
/s/ Patrick E. Keefe Director March 16, 1998
- -----------------------------
Patrick E. Keefe
/s/ Sandra E. Laney Director March 16, 1998
- -----------------------------
Sandra E. Laney
/s/ Andrea R. Lindell Director March 16, 1998
- -----------------------------
Andrea R. Lindell
/s/ Sheldon Margen Director March 16, 1998
- -----------------------------
Sheldon Margen
/s/ Kevin J. McNamara Director March 16, 1998
- -----------------------------
Kevin J. McNamara
/s/ John M. Mount Director March 16, 1998
- -----------------------------
John M. Mount
/s/ D. Walter Robbins, Jr. Director March 16, 1998
- -----------------------------
D. Walter Robbins, Jr.
</TABLE>
6
<PAGE> 7
INDEX TO EXHIBITS
Number Description
- ------ -----------
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3(a) to Registration
Statement No. 33-59689)
4.2 Certificate of Amendment of Restated Certificate of
Incorporation of the Company (incorporated by reference to
Exhibit 3(b) to Registration Statement No. 333-7695)
4.3 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 & Flory LLP
23.1 Consent of Thompson Hine & Flory LLP (contained in opinion
filed as Exhibit 5)
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Ernst & Young LLP
24 Power of Attorney (included on signature page)
99.1 Form of Warrant issued to Sheila K. Fiepke, Karl A. Kalas, Ed
Kaufman, Carol A. King and Lawrence Wayne
99.2 Form of Warrant issued to Irwin Berkley, Sheila K. Fiepke,
Karl A. Kalas, Ed Kaufman, Carol A. King and Greg Schoonover
7
<PAGE> 1
Exhibit 5
THOMPSON HINE & FLORY LLP
2000 Courthouse Plaza NE
P.O. Box 8801
Dayton, OH 45401-8801
March 16, 1998
Omnicare, Inc.
50 East RiverCenter Blvd.
Suite 1530
Covington, KY 41011
Ladies and Gentlemen:
We have acted as counsel to Omnicare, Inc., a Delaware corporation (the
"Company"), in connection with the filing by the Company of a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933 for the registration of 80,000 shares of common stock, $1.00 par value per
share, of the Company (the "Shares") that may be issued upon the exercise of
certain Warrants dated January 15, 1998 granted by the Company to each of Irwin
Berkley, Sheila K. Fiepke, Karl A. Kalas, Ed Kaufman, Carol A. King, Greg
Schoonover and Lawrence Wayne (the "Warrants").
We have examined and are familiar with the Restated Certificate of
Incorporation of the Company and various corporate records and proceedings
relating to the organization of the Company and the issuance of the Warrants and
the Shares. Based upon the foregoing and upon investigation of such other
matters as we considered 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 issuance of the Shares upon exercise of the Warrants has been
duly authorized by the Company and, when the Shares have been issued as
authorized in accordance with the terms of the Warrants, the Shares will be
validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an Exhibit to the Registration
Statement. Except as set forth in the preceding sentence, this opinion may not
be relied upon by any other person, or used by you for any other purposes,
without our prior written consent.
Very truly yours,
/s/ Thompson Hine & Flory LLP
JMR:PCN
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 29, 1997 appearing on page 27
of Omnicare, Inc.'s Annual Report on Form 10-K/A for the year ended December 31,
1996.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Cincinnati, Ohio
March 16, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Omnicare, Inc. for the registration of 80,000 shares of its common
stock of our report dated March 19, 1997 with respect to the consolidated
financial statements and schedule of American Medserve Corporation included in
its Form 10-K for the year ended December 31, 1996, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
March 16, 1998
<PAGE> 1
Exhibit 99.1
------------
Dated: January 15, 1998
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE. THIS WARRANT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE
WITH SUCH LAWS.
No. of Shares: __________ Warrant No. ____
WARRANT
(____________________)
To Purchase Common Stock of
OMNICARE, INC.
Expiring January 15, 2001
This certifies that, for value received, ____________________ is
entitled to purchase from OMNICARE, INC., a Delaware corporation (the
"Company"), at any time after 3:00 P.M. Eastern Standard Time, January 15, 1999,
and on or before 3:00 P.M. Eastern Standard Time, January 15, 2001,
_______________ (__________) shares of Common Stock of the Company at a Purchase
Price of $30.8438 per share in lawful money of the United States of America. The
number of shares of Common Stock purchasable hereunder, and the Purchase Price
therefor, are subject to adjustment as hereinafter set forth in Section 5.
SECTION 1. DEFINITIONS. For all purposes of this Warrant the following
terms shall have the meanings indicated:
"INITIAL PURCHASE PRICE" shall mean the initial purchase price
of $30.8438 per share of Common Stock as hereinbefore set forth.
"PURCHASE PRICE" shall mean the Initial Purchase Price or the
Initial Purchase Price as adjusted from time to time pursuant to the provisions
of Section 5 hereof.
"COMMISSION" shall mean the United States Securities and
Exchange Commission.
"COMMON STOCK" shall mean the shares of One Dollar ($1.00) par
value common stock of the Company.
"COMPANY" shall mean Omnicare, Inc., a Delaware corporation,
and any entity which shall succeed to, or assume, the obligations of said
corporation hereunder.
<PAGE> 2
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time.
"SECURITIES ACT" shall mean the Securities Act of 1933 and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"TRANSFER" as used in Section 4 shall include any disposition
of any Warrants or Warrant Shares, or of any interest in either thereof which
would constitute a sale thereof within the meaning of the Securities Act.
"WARRANT" shall mean this Warrant and all Warrants issued in
exchange, transfer or replacement hereof.
"WARRANT SHARES" shall mean the shares of Common Stock
purchased or purchasable by the registered holder of this Warrant upon the
exercise hereof.
All terms used in this Warrant which are not defined in Section 1 have
the meanings respectively set forth therefor elsewhere in this Warrant.
SECTION 2. EXERCISE OF WARRANT. This Warrant may be exercised at any
time and from time to time between January 15, 1999 and January 15, 2001. In
order to exercise this Warrant in whole or in part, the registered holder hereof
shall complete the "Notice of Intention to Exercise Warrant" attached hereto
(the "Notice Form"), and deliver to the Company or its designated agent this
Warrant and cash in an amount equal to the then aggregate Purchase Price of the
shares of Common Stock being purchased at its office or agency in Cincinnati,
Ohio (or such other office or agency of the Company as the Company may designate
by notice in writing to the holder of this Warrant). Upon receipt thereof, the
Company shall, as promptly as practicable, execute and deliver to such holder a
certificate or certificates representing the aggregate number of shares of
Common Stock specified in said Notice Form, all of which shares shall be duly
and validly authorized and issued, fully paid and nonassessable. Each stock
certificate so delivered shall be registered in the name of such holder or such
other name as shall be designated by such holder. If this Warrant shall have
been exercised only in part, the Company shall, at the time of delivery of such
stock certificate or certificates, deliver to such holder a new Warrant
evidencing the rights of such holder to purchase the remaining shares of Common
Stock covered by this Warrant.
SECTION 3. OWNERSHIP OF THIS WARRANT. (a) The Company may deem and
treat the person in whose name this Warrant is registered as the holder and
owner hereof (notwithstanding any notations of ownership or writing hereon made
by anyone other than the Company) for all purposes and shall not be affected by
any notice to the contrary, until presentation of this Warrant for registration
of transfer as provided in this Section 3.
-2-
<PAGE> 3
(b) EXCHANGE, TRANSFER AND REPLACEMENT. Subject to Section 4,
this Warrant is exchangeable, upon the surrender hereof by the registered holder
to the Company at its office or agency described in Section 2, for new Warrants
of like tenor and date representing in the aggregate the right to purchase the
number of shares purchasable hereunder, each of such new Warrants to represent
the right to purchase such number of shares as shall be designated by the
registered holder at the time of such surrender. Subject to the restrictions set
forth in Section 4, this Warrant and all rights hereunder are transferable in
whole or in part upon the books of the Company by the registered holder hereof
in person or by duly authorized attorney, and a new Warrant shall be made and
delivered by the Company of the same tenor and date as this Warrant but
registered in the name of the transferee, upon surrender of this Warrant duly
endorsed, at said office or agency of the Company. Upon receipt by the Company
of evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and, in case of loss, theft or destruction, of an
agreement of indemnity (without security therefor), and upon surrender and
cancellation of this Warrant, if mutilated, the Company will make and deliver a
new Warrant of like tenor, in lieu of this Warrant. This Warrant shall be
promptly canceled by the Company upon the surrender hereof in connection with
any exchange, transfer or replacement. The Company shall pay all expenses, taxes
(other than stock transfer taxes) and other charges payable in connection with
the preparation, execution and delivery of Warrants pursuant to this Section 3.
SECTION 4. SECURITIES LAW RESTRICTIONS AND PROVISIONS.
(a) INVESTMENT REPRESENTATION - TRANSFER RESTRICTIONS. By
acceptance hereof, the holder hereof warrants and represents that such holder is
acquiring the Warrant or Warrant Shares for such holder's own account for
investment only and not with a view to the public distribution thereof. This
Warrant shall not be assigned, sold, hypothecated or Transferred except in
compliance with the terms hereof. Neither this Warrant nor the related Warrant
Shares shall be transferable except upon the conditions specified in this
Section 4, which conditions are intended, among other things, to insure
compliance with the provisions of the Securities Act in respect of the Transfer
of this Warrant or such Warrant Shares. The holder of this Warrant agrees that
such holder will not, prior to delivery to the Company of an opinion of counsel
selected by the Company to the effect that registration under the Securities Act
and any applicable state securities laws is not required, or until registration
of such Warrants and/or Warrant Shares under the Securities Act and any
applicable state securities law has become effective, Transfer this Warrant or
the related Warrant Shares.
(b) EXERCISE IN THE ABSENCE OF REGISTRATION. The holder of
this Warrant may exercise this Warrant in whole or in part at any time under the
provisions hereof. In the event the holder elects to exercise this Warrant in
the absence of the prior registration of the Warrant Shares by the Company under
the Securities Act and/or any applicable state securities law, then all Warrant
Shares so purchased without registration shall constitute restricted securities
within the meaning of Rule 144 promulgated under the Securities Act, and any
certificate representing such shares shall bear an appropriate legend to that
effect.
-3-
<PAGE> 4
(c) PIGGYBACK REGISTRATION RIGHTS. The Company shall have no
obligation to register or attempt to register under the Securities Act or any
state securities law either (i) this Warrant for future Transfer by the holder
hereof, or (ii) all or any of the Warrant Shares, either before or after the
exercise of this Warrant by the holder. However, in the event the Company
chooses for any reason to file a registration statement under the Securities Act
on Form S-1, S-2, or S-3 involving the sale of the Company's securities to the
public (other than in connection with an exchange offer with the securities
holders of another entity), the Company shall notify the holder hereof of such
proposed filing at least fifteen (15) days in advance thereof, and the holder
hereof shall have the right to cause the Company to include, at the Company's
expense (provided that all selling expenses relating to such shares shall be the
holder's responsibility) any Warrant Shares in such registration statement,
either for sale to the holder upon exercise hereof or for sale by the holder if
the holder has theretofore exercised this Warrant and obtained restricted stock.
If the Company does not receive, within seven days of the date of its notice to
the holder, a notice from the holder stating that the holder wishes to include
Warrant Shares in such registration statement, then the holder shall be deemed
to have declined to exercise the piggyback registration rights herein granted.
This right shall exist from the date of this Warrant until the later of the
expiration of this Warrant as set forth above or two years after the date of any
exercise of this Warrant in the absence of registration of the Warrant Shares
under the Securities Act as contemplated in paragraph (b) of this Section 4.
SECTION 5. ADJUSTMENT PROVISIONS. If the Company shall at any time
during the term hereof subdivide its outstanding Common Stock by
recapitalization, reclassification, stock split or other subdivision, the number
of Warrant Shares subject to exercise hereunder immediately prior to such action
shall be proportionately increased and the Purchase Price proportionately
decreased, and if the Company shall at any time combine its outstanding Common
Stock by recapitalization, reclassification, reverse stock split or other
combination, the number of Warrant Shares subject to exercise hereunder
immediately prior to such combination shall be proportionately decreased and the
Purchase Price proportionately increased.
SECTION 6. RESERVATION OF SHARES. During the term of this Warrant, the
Company shall at all times reserve and keep available from its authorized but
unissued or treasury shares such number of shares of its Common Stock as shall
be issuable upon exercise of this Warrant.
SECTION 7. NOTICES. Any notice or other document required or permitted
to be given or delivered to the holder hereof shall be in writing, shall be
delivered at, or sent by certified or registered mail to the holder at the last
address shown on the books of the Company maintained for the registry and
transfer of this Warrant, and shall be effective upon receipt. Any notice or
other document required or permitted to be given or delivered to the Company
shall be delivered at, or sent by certified or registered mail to, the principal
office of the Company, at 2800 Chemed Center, 255 East Fifth Street, Cincinnati,
Ohio 45202, Attention: President, or such other address as shall have been
furnished to the holder hereof by the Company, and shall be effective upon
receipt.
-4-
<PAGE> 5
SECTION 8. NO RIGHTS AS STOCKHOLDER; LIMITATION OF LIABILITY. This
Warrant shall not entitle any holder hereof to any of the rights of a
stockholder of the Company. No provision hereof, in the absence of affirmative
action by the holder hereof to purchase shares of Common Stock, and no mere
enumeration herein of the rights or privileges of the holder hereof, shall give
rise to any liability of such holder for the Purchase Price or as a stockholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
SECTION 9. LAW GOVERNING. This Warrant shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
SECTION 10. MISCELLANEOUS. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party (or any predecessor in interest thereof) against which
enforcement of the same is sought. The headings in this Warrant are for purposes
of reference only and shall not affect the meaning or construction of any of the
provisions hereof.
-5-
<PAGE> 6
IN WITNESS WHEREOF, Omnicare, Inc. has caused this Warrant to be signed
by its duly authorized officer under its corporate seal, attested by its duly
authorized officer, and to be dated as of the 15th day of January, 1998.
OMNICARE, INC.
By:
--------------------------------
Cheryl D. Hodges
Senior Vice President
ACCEPTANCE
----------
____________________ hereby accepts the foregoing Warrant and agrees
with all terms and conditions set forth therein.
Dated as of: January 15, 1998
----------------------------
-6-
<PAGE> 7
Notice of Intention to Exercise Warrant
---------------------------------------
The undersigned holder of this Warrant hereby exercises its right to
exchange this Warrant for the number of shares of Common Stock of Omnicare, Inc.
shown below in accordance with the terms hereof and directs that (i) such shares
be issued and delivered to the undersigned as provided by the terms of this
Warrant, and that (ii) a certificate representing the number of shares covered
by this Warrant which shall thereafter remain outstanding, if any, also be
delivered to the undersigned. This notice is accompanied by the Aggregate
Purchase Price shown below.
Number of shares as to which exercised:
--------------
Aggregate Purchase Price: $
--------------
Dated as of:
---------------- ---------------------------
-7-
<PAGE> 1
Exhibit 99.2
------------
Dated: January 15, 1998
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE. THIS WARRANT MAY NOT BE SOLD OR OTHERWISE TRANSFERRED WITHOUT COMPLIANCE
WITH SUCH LAWS.
No. of Shares: __________ Warrant No. ____
WARRANT
(____________________)
To Purchase Common Stock of
OMNICARE, INC.
Expiring January 15, 2003
This certifies that, for value received, ____________________ is
entitled to purchase from OMNICARE, INC., a Delaware corporation (the
"Company"), at any time after 3:00 P.M. Eastern Standard Time, January 15, 1999,
and on or before 3:00 P.M. Eastern Standard Time, January 15, 2003,
_______________ (__________) shares of Common Stock of the Company at a Purchase
Price of $30.8438 per share in lawful money of the United States of America. The
number of shares of Common Stock purchasable hereunder, and the Purchase Price
therefor, are subject to adjustment as hereinafter set forth in Section 5.
SECTION 1. DEFINITIONS. For all purposes of this Warrant the following
terms shall have the meanings indicated:
"INITIAL PURCHASE PRICE" shall mean the initial purchase price
of $30.8438 per share of Common Stock as hereinbefore set forth.
"PURCHASE PRICE" shall mean the Initial Purchase Price or the
Initial Purchase Price as adjusted from time to time pursuant to the provisions
of Section 5 hereof.
"COMMISSION" shall mean the United States Securities and
Exchange Commission.
"COMMON STOCK" shall mean the shares of $1.00 par value common
stock of the Company.
"COMPANY" shall mean Omnicare, Inc., a Delaware corporation,
and any entity which shall succeed to, or assume, the obligations of said
corporation hereunder.
-1-
<PAGE> 2
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time.
"SECURITIES ACT" shall mean the Securities Act of 1933 and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"TRANSFER" as used in Section 4 shall include any disposition
of any Warrants or Warrant Shares, or of any interest in either thereof which
would constitute a sale thereof within the meaning of the Securities Act.
"WARRANT" shall mean this Warrant and all Warrants issued in
exchange, transfer or replacement hereof.
"WARRANT SHARES" shall mean the shares of Common Stock
purchased or purchasable by the registered holder of this Warrant upon the
exercise hereof.
All terms used in this Warrant which are not defined in Section 1 have
the meanings respectively set forth therefor elsewhere in this Warrant.
SECTION 2. EXERCISE OF WARRANT. This Warrant may be exercised at any
time and from time to time between January 15, 1999 and January 15, 2003. In
order to exercise this Warrant in whole or in part, the registered holder hereof
shall complete the "Notice of Intention to Exercise Warrant" attached hereto
(the "Notice Form"), and deliver to the Company or its designated agent this
Warrant and cash in an amount equal to the then aggregate Purchase Price of the
shares of Common Stock being purchased at its office or agency in Cincinnati,
Ohio (or such other office or agency of the Company as the Company may designate
by notice in writing to the holder of this Warrant). Upon receipt thereof, the
Company shall, as promptly as practicable, execute and deliver to such holder a
certificate or certificates representing the aggregate number of shares of
Common Stock specified in said Notice Form, all of which shares shall be duly
and validly authorized and issued, fully paid and nonassessable. Each stock
certificate so delivered shall be registered in the name of such holder or such
other name as shall be designated by such holder. If this Warrant shall have
been exercised only in part, the Company shall, at the time of delivery of such
stock certificate or certificates, deliver to such holder a new Warrant
evidencing the rights of such holder to purchase the remaining shares of Common
Stock covered by this Warrant.
SECTION 3. OWNERSHIP OF THIS WARRANT. (a) The Company may deem and
treat the person in whose name this Warrant is registered as the holder and
owner hereof (notwithstanding any notations of ownership or writing hereon made
by anyone other than the Company) for all purposes and shall not be affected by
any notice to the contrary, until presentation of this Warrant for registration
of transfer as provided in this Section 3.
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<PAGE> 3
(b) EXCHANGE, TRANSFER AND REPLACEMENT. Subject to Section 4,
this Warrant is exchangeable, upon the surrender hereof by the registered holder
to the Company at its office or agency described in Section 2, for new Warrants
of like tenor and date representing in the aggregate the right to purchase the
number of shares purchasable hereunder, each of such new Warrants to represent
the right to purchase such number of shares as shall be designated by the
registered holder at the time of such surrender. Subject to the restrictions set
forth in Section 4, this Warrant and all rights hereunder are transferable in
whole or in part upon the books of the Company by the registered holder hereof
in person or by duly authorized attorney, and a new Warrant shall be made and
delivered by the Company of the same tenor and date as this Warrant but
registered in the name of the transferee, upon surrender of this Warrant duly
endorsed, at said office or agency of the Company. Upon receipt by the Company
of evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and, in case of loss, theft or destruction, of an
agreement of indemnity (without security therefor), and upon surrender and
cancellation of this Warrant, if mutilated, the Company will make and deliver a
new Warrant of like tenor, in lieu of this Warrant. This Warrant shall be
promptly canceled by the Company upon the surrender hereof in connection with
any exchange, transfer or replacement. The Company shall pay all expenses, taxes
(other than stock transfer taxes) and other charges payable in connection with
the preparation, execution and delivery of Warrants pursuant to this Section 3.
SECTION 4. SECURITIES LAW RESTRICTIONS AND PROVISIONS.
(a) INVESTMENT REPRESENTATION - TRANSFER RESTRICTIONS. By
acceptance hereof, the holder hereof warrants and represents that such holder is
acquiring the Warrant or Warrant Shares for such holder's own account for
investment only and not with a view to the public distribution thereof. This
Warrant shall not be assigned, sold, hypothecated or Transferred except in
compliance with the terms hereof. Neither this Warrant nor the related Warrant
Shares shall be transferable except upon the conditions specified in this
Section 4, which conditions are intended, among other things, to insure
compliance with the provisions of the Securities Act in respect of the Transfer
of this Warrant or such Warrant Shares. The holder of this Warrant agrees that
such holder will not, prior to delivery to the Company of an opinion of counsel
selected by the Company to the effect that registration under the Securities Act
and any applicable state securities laws is not required, or until registration
of such Warrants and/or Warrant Shares under the Securities Act and any
applicable state securities law has become effective, Transfer this Warrant or
the related Warrant Shares.
(b) EXERCISE IN THE ABSENCE OF REGISTRATION. The holder of
this Warrant may exercise this Warrant in whole or in part at any time under the
provisions hereof. In the event the holder elects to exercise this Warrant in
the absence of the prior registration of the Warrant Shares by the Company under
the Securities Act and/or any applicable state securities law, then all Warrant
Shares so purchased without registration shall constitute restricted securities
within the meaning of Rule 144 promulgated under the Securities Act, and any
certificate representing such shares shall bear an appropriate legend to that
effect.
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<PAGE> 4
(c) PIGGYBACK REGISTRATION RIGHTS. The Company shall have no
obligation to register or attempt to register under the Securities Act or any
state securities law either (i) this Warrant for future Transfer by the holder
hereof, or (ii) all or any of the Warrant Shares, either before or after the
exercise of this Warrant by the holder. However, in the event the Company
chooses for any reason to file a registration statement under the Securities Act
on Form S-1, S-2, or S-3 involving the sale of the Company's securities to the
public (other than in connection with an exchange offer with the securities
holders of another entity), the Company shall notify the holder hereof of such
proposed filing at least fifteen (15) days in advance thereof, and the holder
hereof shall have the right to cause the Company to include, at the Company's
expense (provided that all selling expenses relating to such shares shall be the
holder's responsibility) any Warrant Shares in such registration statement,
either for sale to the holder upon exercise hereof or for sale by the holder if
the holder has theretofore exercised this Warrant and obtained restricted stock.
If the Company does not receive, within seven days of the date of its notice to
the holder, a notice from the holder stating that the holder wishes to include
Warrant Shares in such registration statement, then the holder shall be deemed
to have declined to exercise the piggyback registration rights herein granted.
This right shall exist from the date of this Warrant until the later of the
expiration of this Warrant as set forth above or two years after the date of any
exercise of this Warrant in the absence of registration of the Warrant Shares
under the Securities Act as contemplated in paragraph (b) of this Section 4.
SECTION 5. ADJUSTMENT PROVISIONS. If the Company shall at any time
during the term hereof subdivide its outstanding Common Stock by
recapitalization, reclassification, stock split or other subdivision, the number
of Warrant Shares subject to exercise hereunder immediately prior to such action
shall be proportionately increased and the Purchase Price proportionately
decreased, and if the Company shall at any time combine its outstanding Common
Stock by recapitalization, reclassification, reverse stock split or other
combination, the number of Warrant Shares subject to exercise hereunder
immediately prior to such combination shall be proportionately decreased and the
Purchase Price proportionately increased.
SECTION 6. RESERVATION OF SHARES. During the term of this Warrant, the
Company shall at all times reserve and keep available from its authorized but
unissued or treasury shares such number of shares of its Common Stock as shall
be issuable upon exercise of this Warrant.
SECTION 7. NOTICES. Any notice or other document required or permitted
to be given or delivered to the holder hereof shall be in writing, shall be
delivered at, or sent by certified or registered mail to the holder at the last
address shown on the books of the Company maintained for the registry and
transfer of this Warrant, and shall be effective upon receipt. Any notice or
other document required or permitted to be given or delivered to the Company
shall be delivered at, or sent by certified or registered mail to, the principal
office of the Company, at 2800 Chemed Center, 255 East Fifth Street, Cincinnati,
Ohio 45202, Attention: President, or such other address as shall have been
furnished to the holder hereof by the Company, and shall be effective upon
receipt.
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<PAGE> 5
SECTION 8. NO RIGHTS AS STOCKHOLDER; LIMITATION OF LIABILITY. This
Warrant shall not entitle any holder hereof to any of the rights of a
stockholder of the Company. No provision hereof, in the absence of affirmative
action by the holder hereof to purchase shares of Common Stock, and no mere
enumeration herein of the rights or privileges of the holder hereof, shall give
rise to any liability of such holder for the Purchase Price or as a stockholder
of the Company, whether such liability is asserted by the Company or by
creditors of the Company.
SECTION 9. LAW GOVERNING. This Warrant shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware.
SECTION 10. MISCELLANEOUS. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party (or any predecessor in interest thereof) against which
enforcement of the same is sought. The headings in this Warrant are for purposes
of reference only and shall not affect the meaning or construction of any of the
provisions hereof.
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<PAGE> 6
IN WITNESS WHEREOF, Omnicare, Inc. has caused this Warrant to be signed
by its duly authorized officer under its corporate seal, attested by its duly
authorized officer, and to be dated as of the 15th day of January, 1998.
OMNICARE, INC.
By:
---------------------------------
Cheryl D. Hodges
Senior Vice President
ACCEPTANCE
----------
____________________ hereby accepts the foregoing Warrant and agrees
with all terms and conditions set forth therein.
Dated as of: January 15, 1998
---------------------------
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<PAGE> 7
Notice of Intention to Exercise Warrant
---------------------------------------
The undersigned holder of this Warrant hereby exercises its right to
exchange this Warrant for the number of shares of Common Stock of Omnicare, Inc.
shown below in accordance with the terms hereof and directs that (i) such shares
be issued and delivered to the undersigned as provided by the terms of this
Warrant, and that (ii) a certificate representing the number of shares covered
by this Warrant which shall thereafter remain outstanding, if any, also be
delivered to the undersigned. This notice is accompanied by the Aggregate
Purchase Price shown below.
Number of shares as to which exercised:
--------------
Aggregate Purchase Price: $
--------------
Dated as of:
--------------- -------------------------
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