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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 2, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OMNICARE, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 31-1001351
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
</TABLE>
100 EAST RIVERCENTER BLVD.
COVINGTON, KENTUCKY 41011
(Address of Principal Executive Offices)
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OMNICARE, INC. 1998 LONG-TERM EMPLOYEE INCENTIVE PLAN
------------------
CHERYL D. HODGES,
SECRETARY
C/O OMNICARE, INC.
SUITE 1600
100 EAST RIVERCENTER BLVD.
COVINGTON, KENTUCKY 41011
(606) 392-3300
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered(2) Share Price Registration Fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$1.00 per share(1) 31,947 $23.5313 $ 751,754.44(3)
626,550 12.3438 7,734,007.89(3)
14,000 9.5938 134,313.20(3)
327,503 9.9688 3,264,811.91(4)
------------
$11,884,887.44 $3,137.61
</TABLE>
(1) There are also being registered hereunder an equal number of Purchase
Rights, which are currently attached to and transferrable only with the
Common Stock registered hereby, issuable pursuant to the Registrant's
Stockholder Rights Plan.
(2) Amount to be registered will include an indeterminate additional number that
may be issuable pursuant to the antidilution provisions of the Registrant's
1998 Long-Term Employee Incentive Plan.
(3) Calculated in accordance with Rule 457(h)(l) based on the price at which
outstanding options may be exercised
under the Registrant's 1998 Long-Term Employee Incentive Plan.
(4) Calculated in accordance with Rule 457(h)(l) based on the average of the
high and low sales price of the Common Stock as reported on the New York
Stock Exchange on January 26, 2000.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference herein and shall be deemed
a part hereof:
(a) The Annual Report of Omnicare, Inc. ("Omnicare") on Form 10-K
for the fiscal year ended December 31, 1998, filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act").
(b) All other reports filed by Omnicare pursuant to Section 13(a)
or 15(d) of the Exchange Act since December 31, 1998.
(c) The description of Omnicare's common stock set forth in
Omnicare's Registration Statement on Form 8-A/A-1 (File No. 1-8269)
filed with the Commission on April 17, 1996.
All documents filed by Omnicare pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act, after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, 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 which 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 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Certificate of Incorporation, as amended, and Amended 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 legal 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.
In addition, Omnicare maintains directors' and officers' liability insurance
policies.
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ITEM 8. EXHIBITS.
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<TABLE>
<CAPTION>
Exhibit Number
- --------------
Description
- -----------
<S> <C>
*4.1 Restated Certificate of Incorporation of the Registrant
(incorporated herein by reference to Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1996).
*4.2 Certificate of Amendment of Registrant's Restated Certificate
of Incorporation (incorporation herein by reference to
Registrant's Registration Statement on Form S-4 (File No.
333-53749), filed with the Commission on May 27, 1998).
*4.3 Amended Bylaws of the Registrant (incorporated herein by
reference to Registrant's Registration Statement on Form S-3
(File No. 333-64441), filed with the Commission on September
28, 1998.
5 Opinion of Thompson Hine & Flory LLP, as to the legality of
the securities to be registered.
23.1 Consent of Thompson Hine & Flory LLP (contained in the opinion
filed as Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Ernst & Young LLP.
23.4 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on the signature pages hereof).
</TABLE>
* Incorporated by reference.
3
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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 (the "Securities Act");
(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 Exchange Act
that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 and
is, therefore,
4
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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 and will be governed by the final
adjudication of such issue.
5
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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 town of Covington, Commonwealth of Kentucky, on the 1st day
of February, 2000.
OMNICARE, INC.
By
/s/ Peter Laterza
-----------------------------------
Peter Laterza,
Vice President and General Counsel
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.
6
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<TABLE>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Edward L. Hutton Chairman and Director February 1, 2000
- --------------------------- (Principal Executive Officer)
Edward L. Hutton
/s/ Joel F. Gemunder President and Director February 1, 2000
- --------------------------- (Principal Executive Officer)
Joel F. Gemunder
/s/ David W. Froesel, Jr. Senior Vice President and February 1, 2000
- --------------------------- Chief Financial Officer
David W. Froesel, Jr. (Principal Financial Officer and
Principal Accounting Officer)
Director
- ---------------------------
Timothy E. Bien
/s/ Charles H. Erhart, Jr. Director February 1, 2000
- ---------------------------
Charles H. Erhart, Jr.
/s/ Mary Lou Fox Director February 1, 2000
- ---------------------------
Mary Lou Fox
/s/ Cheryl D. Hodges Director February 1, 2000
- ---------------------------
Cheryl D. Hodges
Director
- ---------------------------
Timothy C. Hutton
/s/ Patrick E. Keefe Director February 1, 2000
- ---------------------------
Patrick E. Keefe
/s/ Sandra E. Laney Director February 1, 2000
- ---------------------------
Sandra E. Laney
/s/ Andrea R. Lindell Director February 1, 2000
- ---------------------------
Andrea R. Lindell, DNSc, RN
/s/ Sheldon Margen Director February 1, 2000
- ---------------------------
Sheldon Margen, M.D.
/s/ Kevin J. McNamara Director February 1, 2000
- ---------------------------
Kevin J. McNamara
</TABLE>
7
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EXHIBIT INDEX
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<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
*4.1 Restated Certificate of Incorporation of the Registrant
(incorporated herein by reference to Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1996).
*4.2 Certificate of Amendment of Registrant's Restated Certificate
of Incorporation (incorporated herein by reference to
Registrant's Registration Statement on Form S-4 (File No.
333-53749), filed with the Commission on May 27, 1998).
*4.3 Amended Bylaws of the Registrant (incorporated herein by
reference to Registrant's Registration Statement on Form S-3
(File No. 333-64441), filed with the Commission on September
28, 1998.
5 Opinion of Thompson Hine & Flory LLP, as to the legality of
the securities to be registered.
23.1 Consent of Thompson Hine & Flory LLP (contained in the opinion
filed as Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Ernst & Young LLP.
23.4 Consent of Arthur Andersen LLP.
24 Power of Attorney (included on the signature pages hereof).
</TABLE>
* Incorporated by reference.
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Exhibit 5
THOMPSON
HINE & FLORY LLP
Attorneys at Law
February 1, 2000
Omnicare, Inc.
100 East RiverCenter Blvd.
Suite 1600
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 1,000,000 shares of common stock, $1.00 par
value per share, of the Company (the "Shares") that may be issued under the
Omnicare, Inc, 1998 Long-Term Employee Incentive Plan (the "Plan").
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 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 Shares have been duly authorized, and when they are issued
and paid for in accordance with the Plan, they will be validly issued,
fully paid and nonassessable.
Our opinion is limited to the effect of the General Corporation Laws of
the State of Delaware, including the statutory provisions, all applicable
provisions of the Delaware Constitution and reported judicial opinions
interpreting these laws, as in effect on the date hereof. Accordingly, we
express no opinion with respect to the effect of any other laws.
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
2000 Courthouse Plaza NE, P.O. Box 8801, Dayton Ohio 45401-8801, 937-443-6600,
Fax 937-443-6635
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EXHIBIT 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8, relating to the Omnicare, Inc. 1998 Long-Term Employee
Incentive Plan, of our report dated January 29, 1999 relating to the financial
statements and financial statement schedules, which appears in Omnicare Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1998. We also consent
to the reference to us under the heading "Experts" in such Registration
Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Cincinnati, Ohio
January 31, 2000
<PAGE>
Exhibit 23.3
Consent of Independent Certified Public Accountants
We consent to the use of our report dated March 6, 1998, with respect to the
financial statements of CompScript, Inc. as of December 31, 1997 and for each of
the two years in the period ended December 31, 1997, which report is
incorporated by reference in the Registration Statement (Form S-8) and related
Prospectus of Omnicare, Inc. for the registration of 1,000,000 shares of its
common stock.
/s/ Ernst & Young LLP
West Palm Beach, Florida
January 31, 2000
<PAGE>
Exhibit 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated
February 5, 1998 on IBAH, Inc.'s 1997 and 1996 financial statements included in
Omnicare, Inc.'s Form 10-K for the year ended December 31, 1998 and to all
references to our firm included in this registration statement.
/s/ Arthur Andersen LLP
Philadelphia, Pa.,
January 31, 2000
