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As filed with the Securities and Exchange Commission on October 15, 1998
Registration No. 333-______________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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OMEGA HEALTH SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3220466
(State of Incorporation) (I.R.S. Employer Identification No.)
5350 Poplar Avenue, Suite 900
Memphis, Tennessee 38119
(Address of principal executive offices)
OCUSYSTEMS, INC. 1985 STOCK OPTION PLAN
(Full Title of the Plan)
Thomas P. Lewis
5350 Poplar Avenue, Suite 900
Memphis, Tennessee 38119
(901) 683-7868
(Name, address and telephone number of agent for service)
(with copies to:)
Linda M. Crouch
Baker, Donelson, Bearman & Caldwell
P.O. Box 3038 (37602)
207 Mockingbird Lane, 3rd Floor
Johnson City, Tennessee 37604
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED OFFERING PRICE PER SHARE(1) AGGREGATE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock,
$0.06 par value 450,000 $3.20 $1,440,000 $425
===================================================================================================================================
</TABLE>
(1) The amount of the registration fee is computed in accordance with Rule
457(c) and (h) and is based upon the average of the high and low price of
the Common Stock on October 13, 1998, as reported by the Nasdaq Stock
Market.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission are
incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K filed March 31, 1998, as amended
April 30, 1998.
2. The Registrant's Current Report on Form 8-K filed January 2, 1998, as amended
March 3, 1998.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30,
1998.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 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 herein and to be a part thereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
No response to this item is required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
No response to this item is required.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is incorporated under the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware ("Section
145") provides that a Delaware corporation may indemnify any person who is, or
is threatened to be made, a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person was an officer, director, employee or agent
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys, fees), judgments, fines and
amount paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was illegal. A
Delaware corporation may indemnify any person who is, or is threatened to be
made, a party to any threatened, pending or completed action or suit by or in
the right of the corporation by reason of the fact that such person was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit, provided such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director has actually and reasonably incurred.
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The Company's Certificate of Incorporation provides for the
indemnification of directors and officers of the Company to the fullest extent
permitted by Section 145.
In that regard, the Certificate of Incorporation provides that the
Company shall indemnify any person who was or is a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a director or officer of the Company, or is or was serving at the request of
the Company as a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise
(including, without limitation, any employee benefit plan), whether the basis of
such action, suit or proceeding is alleged action in an official capacity as a
director, officer or representative, or in any other capacity while serving as a
director, officer or representative, shall be indemnified and held harmless by
the Company to the fullest extent authorized by the General Corporation Law of
the State of Delaware, as the same exists or may hereafter be amended, against
all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement reasonably incurred or suffered by him in connection therewith. Such
right shall be a contract right and shall include the right to be paid by the
corporation expenses incurred in defending any action, suit or proceeding in
advance of its final disposition upon delivery to the Company of an undertaking,
if required by law, by or on behalf of such person to repay all amounts so
advanced unless it should be determined ultimately that such person is entitled
to be indemnified by the Company, whether under the Company's Certificate of
Incorporation or otherwise. This right of indemnification under the Certificate
of Incorporation does not exclude any other right which such persons may have or
later acquire under any statute, provision of the Certificate of Incorporation,
bylaw, agreement, vote of stockholders or disinterested directors, or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
No response to this item is required.
ITEM 8. EXHIBITS
Exhibit Number Description
5 Opinion and Consent of Baker, Donelson, Bearman & Caldwell
24.1 Consent of Baker, Donelson, Bearman & Caldwell (Included
in Exhibit 5).
24.2 Consent of KPMG Peat Marwick LLP.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "1933 Act"), each such posteffective amendment shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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(b) The undersigned registrant hereby undertakes that, for the purposes
of determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 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 1933
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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 Act 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 1933 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirement 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 the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Memphis, State of Tennessee, on October 15, 1998.
OMEGA HEALTH SYSTEMS, INC.
By: /s/ Thomas P. Lewis
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Thomas P. Lewis
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Thomas P. Lewis, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute or substitutes, may
lawfully 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.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Andrew W. Miller Chairman of the Board October 15, 1998
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Andrew W. Miller
/s/ Thomas P. Lewis President, Chief Executive Officer, October 15, 1998
- ------------------------------------ and Director
Thomas P. Lewis
/s/ Ronald L. Edmonds Executive Vice President, Chief October 15, 1998
- ------------------------------------ Financial Officer, and Director
Ronald L. Edmonds
/s/ Donald A. Hood Senior Vice President -- Managed October 15, 1998
- ------------------------------------ Care, and Director
Donald A. Hood, O.D.
/s/ Mary Elizabeth Porter Vice President and Controller October 15, 1998
- ------------------------------------
Mary Elizabeth Porter
/s/ Donald Beisner Director October 15, 1998
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Donald Beisner, M.D.
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<TABLE>
<S> <C> <C>
/s/ David M. Dillman Director October 15, 1998
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David M. Dillman, M.D.
/s/ Herman L. Tacker Director October 15, 1998
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Herman L. Tacker, O.D.
</TABLE>
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EXHIBIT 5
OPINION AND CONSENT OF BAKER, DONELSON, BEARMAN & CALDWELL
A copy of the opinion letter and consent of counsel (Exhibit 24.1)
follows. In lieu of an opinion of counsel concerning compliance with the
requirements of ERISA and Section 401 of the Internal Revenue Code, the Company
undertakes that it has submitted or will submit the plan and any amendments
thereto to the Internal Revenue Service in a timely manner and has made or will
make all changes required by the Internal Revenue Service in order to qualify
the plan.
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October 15, 1998
Omega Health Systems, Inc.
5350 Poplar Avenue, Suite 900
Memphis, Tennessee 38119
RE: Ocusystems, Inc. 1985 Stock Option Plan
Gentlemen:
We have acted as securities counsel for Omega Health Systems, Inc., a
Delaware corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-8 (the "Registration Statement"), pursuant to
the Securities Act of 1933, as amended, relating to the Ocusystems, Inc. 1985
Stock Option Plan (the "Plan"). This opinion is being furnished in response to
Item 601 of Regulation S-K and the instructions to Form S-8.
We are familiar with the proceedings to date with respect to the
proposed offering and have examined such records, documents and matters of law
and satisfied ourselves as to such matters of fact as we have considered
relevant for purposes of this opinion.
On the basis of the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and existing under the
laws of the State of Delaware.
2. The Plan has been duly and validly authorized and adopted, and the
Plan confers legal interests upon employees participating in the Plan to the
extent and upon the terms and conditions described therein.
The foregoing opinion is limited to the federal laws of the United
States and the laws of the State of Delaware, and we are expressing no opinion
as to the effect of the laws of any other jurisdiction.
In rendering the foregoing opinion, we have relied to the extent we
deem such reliance appropriate as to certain matters on statements,
representations and other information obtained from public officials, officers
of the Company and other sources believed by us to be responsible.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and to the reference to us in the Prospectus that is a
part of the Registration Statement. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
BAKER, DONELSON, BEARMAN &
CALDWELL, a Professional Corporation
By: Linda M. Crouch
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EXHIBIT 24.2
CONSENT OF KPMG PEAT MARWICK LLP
Independent Auditor's Consent
The Board of Directors
Omega Health Systems, Inc.:
We consent to the use of our report incorporated herein by reference.
KPMG Peat Marwick LLP
Memphis, Tennessee
October 15, 1998
