As filed with the Securities and Exchange Commission on June 26, 1998
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
Post-Effective Amendment No. 1
on FORM S-8
to
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
OMNICARE, INC.
(Exact name of registrant as specified in its charter)
50 East RiverCenter Blvd. -- Suite 1530
DELAWARE Covington, Kentucky 41011 31-1001351
- -------- ------------------------- ----------
(State or other (Address of Principal Executive (I.R.S. Employer
jurisdiction of Offices) (Zip Code) Identification No.)
incorporation or
organization)
1996 Stock Option Plan
of
CompScript, Inc.
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)
Telephone number, including area code, of agent for service: (513) 762-6666
copy to:
Morton A. Pierce
Richard D. Pritz
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
(212) 259-8000
------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered offering price per aggregate offering registration fee
share price
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $1.00 per share 213,401 shares N/A (1) N/A (1) N/A (1)
- ----------------------------------------------------------------------------------------------------
</TABLE>
(1) The registration fee with respect to these shares was previously paid
in connection with the filing of Registrant's Registration Statement on S-4
(Registration No. 333-53637) which was declared effective on May 28, 1998. See
Explanatory Note below.
EXPLANATORY NOTE
Omnicare, Inc. (the "Registrant") hereby amends its Registration Statement on
Form S-4 (File No. 333-53637), effective on May 28, 1998 (the "Form S-4"), by
filing this Post-Effective Amendment No. 1 on Form S-8 to the Form S-4 (the
"Registration Statement") relating to 213,401 shares of Common Stock, $1.00 par
value, of the Registrant (the "Common Stock") issuable in connection with the
1996 Stock Option Plan, as amended (the "Plan"), of CompScript, Inc.
("CompScript").
On June 26, 1998, pursuant to an Agreement and Plan of Merger dated February 23,
1998, as amended (the "Merger Agreement"), CompScript became a wholly-owned
subsidiary of the Registrant (the "Merger"). As provided in the Merger
Agreement, each outstanding share of common stock, $.0001 par value, of
CompScript ("CompScript Common Stock"), was converted into the right to receive
0.12947 shares of the Registrant's Common Stock.
Pursuant to the Merger Agreement, CompScript and the Registrant have taken such
actions as are necessary such that CompScript Common Stock is no longer issuable
under the Plan. Instead, the Registrant's Common Stock will be issuable under
the Plan in such amounts and at such prices as adjusted pursuant to the Plan and
the Merger Agreement.
This Registration Statement relates to 213,401 shares of the Registrant's Common
Stock registered on Form S-4, which were not issued in connection with the
Merger and that are issuable in connection with the Plan.
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This Registration Statement on Form S-8 (the "Registration Statement") is
being filed by Omnicare, Inc. (the "Company" or "Registrant") with respect to
the 1996 Stock Option Plan of CompScript, Inc., as amended (the "Plan"),
referred to on the cover of this Registration Statement. The document(s)
containing the information required in Part I of this Registration Statement
will be sent or given to each of the participants in the Plan, as specified by
Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933 (the "Securities Act"). Such
document(s) are not being filed with the Commission but constitute (together
with the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN 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 Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998;
(c) The Company's Current Reports on Form 8-K, dated February 18,
1998, April 17, 1998 and May 19, 1998;
(d) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 1997; and
(e) 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.
3
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation, as amended, and Amended 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 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 on Page 9.
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) 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
4
<PAGE>
the registrant's annual report pursuant to Section 13(a) or 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.
(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.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on 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 26th day of June,
1998.
OMNICARE, INC.
By /s/ Joel F. Gemunder
-------------------------------
Joel F. Gemunder
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the persons 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 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.
SIGNATURE TITLE DATE
/s/ Edward L. Hutton
- ----------------------------- Chairman and Director June 26, 1998
Edward L. Hutton (Principal Executive Director)
/s/ Joel F. Gemunder
- ----------------------------- President and Director June 26, 1998
Joel F. Gemunder (Principal Executive Officer)
/s/ David W. Froesel, Jr.
- ----------------------------- Senior Vice President and Chief June 26, 1998
David W. Froesel, Jr. Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
6
<PAGE>
/s/ Ronald K. Baur
- ----------------------------- Director June 26, 1998
Ronald K. Baur
/s/ Timothy E. Bien
- ----------------------------- Director June 26, 1998
Timothy E. Bien
/s/ Charles H. Erhart, Jr.
- ----------------------------- Director June 26, 1998
Charles H. Erhart, Jr.
/s/ Mary Lou Fox
- ----------------------------- Director June 26, 1998
Mary Lou Fox
/s/ Cheryl D. Hodges
- ----------------------------- Director June 26, 1998
Cheryl D. Hodges
/s/ Thomas C. Hutton
- ----------------------------- Director June 26, 1998
Thomas C. Hutton
/s/ Patrick E. Keefe
- ----------------------------- Director June 26, 1998
Patrick E. Keefe
/s/ Sandra E. Laney
- ----------------------------- Director June 26, 1998
Sandra E. Laney
/s/ Andrea R. Lindell
- ----------------------------- Director June 26, 1998
Andrea R. Lindell
/s/ Sheldon Margen
- ----------------------------- Director June 26, 1998
Sheldon Margen, M.D.
7
<PAGE>
/s/ Kevin J. McNamara
- ----------------------------- Director June 26, 1998
Kevin J. McNamara
/s/ D. Walter Robbins, Jr.
- ----------------------------- Director June 26, 1998
D. Walter Robbins, Jr.
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<PAGE>
INDEX TO EXHIBITS
Number
3.1 Restated Certificate of Incorporation of the Registrant
(incorporated herein by reference to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1996).
3.2 Certificate of Amendment of Registrant's Restated Certificate of
Incorporation (incorporated herein by reference to Registrant's
Registration Statement on Form S-4 (Registration No. 333-53637),
filed with the Commission on May 27, 1998).
3.3 Amended Bylaws of the Registrant (incorporated herein by reference
to Registrant's Annual Report on Form 10-K for the year ended
December 31, 1992).
4.1 CompScript 1996 Stock Option Plan (incorporated herein by reference
to CompScript, Inc.'s Proxy Statement on Schedule 14A filed with the
Commission on June 17, 1996).
4.2 1997 Amendment to Stock Option Plan (incorporated herein by
reference to CompScript, Inc.'s Annual Report on Form 10-KSB for the
year ended December 31, 1997).
5 Opinion of Dewey Ballantine LLP.*
23.1 Consent of Dewey Ballantine LLP (contained in opinion filed as
Exhibit 5).
23.2 Consent of Price Waterhouse LLP.*
24 Power of Attorney (included on signature page).
- --------------
* Filed herewith.
9
Exhibit 5
[Dewey Ballantine LLP Letterhead]
June 26, 1998
Omnicare, Inc.
50 East RiverCenter Blvd. -- Suite 1530
Covington, Kentucky 41011
Ladies and Gentlemen:
We have acted as special counsel to Omnicare, Inc., a Delaware corporation
("Omnicare"), in connection with the filing by Omnicare of a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933 for the registration of up to 213,401 shares of common stock, $1.00 par
value per share (the "Shares"), of Omnicare which may be issued under the 1996
Stock Option Plan of CompScript, Inc., as amended, referred to therein (the
"Plan").
For the purpose of rendering the opinion set forth herein, we have been
furnished with and examined such certificates and other documents as we have
deemed necessary or advisable for the purpose of expressing the opinion
contained herein.
With respect to all of the documents reviewed, we have assumed, without
investigation, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to originals of all
documents submitted to us as certified or reproduced copies.
We are admitted to the Bar of the State of New York and express no opinion
as to the laws of any other jurisdiction other than the General Corporation Law
of the State of Delaware.
Based on and subject to the foregoing, we are of the opinion that the
issuance of the Shares upon exercise of the options contemplated by the Plan
(the "Options"), has been duly authorized by Omnicare and when the Shares have
been issued as authorized in accordance with the terms of the Options, the
Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Dewey Ballantine LLP
DEWEY BALLANTINE LLP
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 30, 1998 appearing on page 34
of Omnicare, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1997.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Cincinnati, Ohio.
June 26, 1998
