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Registration No. 33-62881
As Filed with the Securities and Exchange Commission
on November 4, 1997
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAPSTONE PHARMACY SERVICES, INC.
--------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware 11-2310352
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
9901 East Valley Ranch Parkway, Suite 3001, Irving, Texas 75063
(Address of Principal Executive Offices)
(Zip Code)
CAPSTONE PHARMACY SERVICES, INC. AMENDED 1995 INCENTIVE AND NONQUALIFIED
STOCK OPTION PLAN FOR KEY PERSONNEL AND DIRECTORS
(Full Name of Plan)
James D. Shelton
Executive Vice President
Capstone Pharmacy Services, Inc.
9901 East Valley Ranch Parkway, Suite 3001
Irving, Texas 75063
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(Name and Address of Agent for Service)
(972) 401-1541
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(Telephone number, including area code for agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Proposed Proposed Maximum Amount of
Title of Securities Amount to be Maximum Offering Aggregate Offering Registration
to be Registered Registered(1) Price Per Share(2) Price Fee
- ------------------- ------------- ------------------ ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 9,540,000 $11.25 $107,325,000 $32,523
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(1) The registration statement also includes an indeterminable number of
additional shares that may become issuable pursuant to the antidilution
adjustment provisions of the Plan.
(2) Pursuant to Rule 457, the offering price is estimated solely for the purpose
of calculating the registration fee on the basis of the average of the high and
low sales prices on October 29, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
Registration Statement. In addition, all documents subsequently filed by
Capstone Pharmacy Services, Inc. (the "Company") pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"),
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 in this
Registration Statement and to be a part thereof 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 modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, as amended (the "10-K").
(b) Capstone's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
(c) Capstone's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997.
(d) Capstone's Current Report on Form 8-K dated January 2, 1997.
(e) Capstone's Current Report on Form 8-K dated January 30, 1997.
(f) Capstone's Current Report on Form 8-K dated September 30, 1997.
(g) The description of the Common Stock under "Description of
Securities" contained in the Company's Registration Statement
on Form 8-A (File Number 000-20606), dated June 18, 1986,
including any amendment or report filed for the purpose of
updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The audited consolidated financial statements and schedules of the
Company incorporated by reference herein have been audited by Arthur Andersen
LLP, independent public accountants, as indicated in their reports with
respect thereto, and are included herein in reliance upon the authority of said
firm in giving said reports.
ITEM 6. INDEMNIFICATION.
Under the Company's Certificate of Incorporation, and in accordance
with Section 145 of the Delaware General Corporation Law (the "Delaware Law"),
the Company will indemnify any person made or threatened to be made a party to
an action or proceeding, whether civil, criminal, administrative or
investigative (other than a "derivative" action by or in the right of the
Company to procure a judgment in its favor) by reason of the fact that such
person is or was a director or officer of the Company, against judgments, fines,
amounts paid in settlement and reasonable expenses, including attorney's fees
actually and necessarily incurred as a result of such action or proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in (or not opposed to) the best interests of the Company, and, in criminal
actions or proceedings, had no reasonable cause to believe was unlawful. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to amounts paid in settlement and reasonable
expenses (including attorneys' fees) incurred in connection with the defense or
settlement of such an action and then, where the action is settled or otherwise
disposed of or the person is adjudged to be liable to the Company, only if and
to the extent the court in which such action was brought or, if none, a court of
competent jurisdiction determines that such person is fairly and reasonably
entitled to such indemnity and then only for such expenses as the court deems
proper.
The Certificate of Incorporation provides that the Company may
indemnify a director or officer for the expenses incurred in defending the
proceedings specified above, at the conclusion of or in advance of their final
disposition or settlement, and on such terms, to such extent, and subject to
such conditions as the Board of Directors shall determine. The Certificate of
Incorporation also provides that the Company may, in its sole discretion,
indemnify any person who is or was one of its employees or agents or any person
who is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise to the same degree as the foregoing indemnification of
directors and officers. The Certificate of Incorporation also provides that such
persons are presumed to be entitled to indemnification, and that the burden of
proving that such person is not entitled to indemnification is on the Company.
Finally, the Certificate of Incorporation provides that if a written claim by
such person for indemnification is not paid within 30 days, the claimant may
bring suit to recover the unpaid amount, and if successful, may recover
attorneys' fees and expenses.
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In addition, the Company may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Company or another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against and incurred by such person in
such capacity, or arising out of the person's status as such whether or not the
Company would have the power or obligation to indemnify such person against such
liability under the provisions of the Delaware Law. The Company maintains
insurance for the benefit of the Company's officers and directors insuring such
persons against certain liabilities, including liabilities under the securities
laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on Page E-1 of this Registration Statement, which Index is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The Company 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 1993 (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; 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;
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provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Company pursuant to section 13 or
section 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) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to section 13(a) or section 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 Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, registrant has duly
caused this Registration Statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on October 28, 1997.
CAPSTONE PHARMACY SERVICES, INC.
By: /s/ James D. Shelton
-----------------------------
James D. Shelton
Executive Vice President, Chief Financial
Officer and Secretary (Chief Accounting
Officer)
POWER OF ATTORNEY
Each person whose signature to the Registration Statement appears below
hereby appoints Allan C. Silber and James D. Shelton, and each of them, as his
attorneys-in-fact to execute in the name and on behalf of any such person,
individually and in the capacity stated below, and to file all amendments and
post-effective amendments to this Registration Statement, which amendment or
amendments may make such changes and additions in this Registration Statement as
such attorneys-in-fact may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on the dates indicated by the following
persons in the capacities indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ James D. Shelton Executive Vice President, Chief October 28, 1997
- ------------------------------- Financial Officer and Secretary
James D. Shelton (Chief Accounting Officer)
/s/ Allan C. Silber Chairman October 28, 1997
- -------------------------------
Allan C. Silber
/s/ Morris A. Perlis Vice Chairman October 28, 1997
- -------------------------------
Morris A. Perlis
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Joseph Furlong Director October 28, 1997
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Joseph Furlong
/s/ John Haronian Director October 28, 1997
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John Haronian
/s/ Albert Reichmann Director October 28, 1997
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Albert Reichmann
/s/ Edward Sonshine Director October 28, 1997
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Edward Sonshine
/s/ Dr. Gail Wilensky Director October 28, 1997
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Dr. Gail Wilensky
/s/ John Zuccotti Director October 28, 1997
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John Zuccotti
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<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
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<S> <C>
4.1 Certificate of Incorporation of the Company (incorporated by reference
to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.4 to the
Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1997).
4.3 Form of Warrant ($4.50) for Purchase of Common Stock (incorporated by
reference to Exhibit 4.5 to the Company's Annual Report on Form 10-K
for fiscal year ended February 29, 1995).
4.4 Form of Warrant ($5.50) for Purchase of Common Stock (incorporated by
reference to Exhibit 4.6 to the Company's Annual Report of Form 10-K for
fiscal year ended February 29, 1995).
4.5 Stock Purchase Agreement, dated December 16, 1994, between the
Company and Counsel Corporation (incorporated by reference to Exhibit
4.7 to the Company's Annual Report on Form 10-K for fiscal year ended
February 29, 1995).
4.6 Warrant to Purchase Shares of Common Stock, dated December 16, 1994,
for the purchase of 800,000 shares (incorporated by reference to Exhibit
4.8 to the Company's Annual Report of Form 10-K for fiscal year ended
February 29, 1995).
4.7 Warrant to Purchase Shares of Common Stock, dated December 16, 1994,
for the purchase of 1,000,000 shares (incorporated by reference to Exhibit
4.9 to the Company's Annual Report of Form 10-K for fiscal year ended
February 29, 1995).
4.8 Warrant to purchase shares of Common Stock dated January 1, 1996, for
the purchase of 75,000 shares (incorporated by reference to Exhibit 4.9 to
the Company's Annual Report on Form 10-K for fiscal year ended
December 31, 1996).
4.9 Warrant to purchase shares of Common Stock dated December 20, 1995
for the purchase of 15,000 shares (incorporated by reference to Exhibit
4.10 to the Company's Annual Report on Form 10-K for fiscal year ended
December 31, 1996).
4.10 Form of ACA Investors Warrant ($12.00) for purchase of Common Stock
(incorporated by reference to Exhibit 4.11 to the Company's Annual
Report on Form 10-K for fiscal year ended December 31, 1996).
4.11 1995 Incentive and Nonqualified Stock Option Plan for Key Personnel and
Directors of the Company (incorporated by reference to Exhibit B to
Schedule 14A filed August 2, 1995).
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<TABLE>
<S> <C>
4.12 Amendment to 1995 Incentive and Nonqualified Stock Option Plan for
Key Personnel and Directors of the Company (incorporated by reference
to Exhibit A to Schedule 14A filed April 29, 1996).
4.13 Amendment to 1995 Incentive and Nonqualified Stock Option Plan for
Key Personnel and Directors of the Company (incorporated by reference
to Exhibit A to Schedule 14A filed June 4, 1997).
4.14 Amendment to 1995 Incentive and Nonqualified Stock Option Plan for
Key Personnel and Directors of the Company (incorporated by reference
to Annex H to the Company's S-4 filed September 22, 1997).
5 Opinion of Harwell Howard Hyne Gabbert & Manner, P.C.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Harwell Howard Hyne Gabbert & Manner, P.C. (contained in
Exhibit 5)
24 Power of Attorney (see pages II-5 and II-6)
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Exhibit 5
November 3, 1997
Capstone Pharmacy Services, Inc.
9901 East Valley Ranch Parkway, Suite 3001
Irving, Texas 75063
Ladies and Gentlemen:
We have acted as special counsel to Capstone Pharmacy Services, Inc.
(the "Company") in connection with the registration of 9,540,000 shares of its
common stock to be issued under the provisions of the Company's Amended 1995
Incentive and Non-Qualified Stock Option Plan for Key Personnel and Directors
pursuant to a registration statement on Form S-8, as filed with the Securities
and Exchange Commission (the "Registration Statement"). This firm hereby
consents to the filing of this opinion as an exhibit to the Registration
Statement and with agencies of such states and other jurisdictions as may be
necessary in the course of complying with the laws of such states and
jurisdictions regarding the offering and sale of the stock in accordance with
the Registration Statement.
We have examined originals, or certified or photostatic copies of such
statutes, records, regulations, certificates of the officers of the Company and
of public officials, and such other information as we have deemed necessary for
purposes of rendering this opinion.
In stating our opinion, we have assumed: (i) that all signatures are
genuine, all documents submitted to us as originals are authentic, and all
documents submitted to us as copies conform to authentic original documents; and
(ii) that the parties to such documents have the legal right and power under all
applicable laws, regulations and agreements to enter into, execute, deliver and
perform their respective obligations thereunder.
On the basis of such review, but subject to the limitations expressed
herein, we are of the opinion, as of the date hereof, that the securities being
registered by the Registration Statement will, when sold as contemplated under
the Registration Statement, be legally issued, fully paid and non-assessable.
Our opinion herein is limited solely to the laws of the United States
of America and the corporate law of the State of Delaware. In rendering the
opinion set forth herein, we have relied
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Exhibit 23.1
[Arthur Andersen LLP logo]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated March 14, 1997,
included in Capstone Pharmacy Services, Inc.'s Form 10-K for the year ended
December 31, 1996, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
October 30, 1997
Baltimore, Maryland
