As filed with the Securities and Exchange Commission on April 9,
1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
SCHEIN PHARMACEUTICAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2726505
(State or other jurisdiction of (I.R.S.Employer Identification
incorporation or organization) No.)
100 Campus Drive
Florham Park, New Jersey 07932
(973) 593-5500
(Address of principal executive offices) (Zip code)
Schein Pharmaceutical, Inc. 1993 Stock Option Plan (formerly the
Schein Holdings, Inc. 1993 Stock Option Plan)
Schein Pharmaceutical, Inc. 1995 Non-Employee Director Stock
Option Plan
Schein Pharmaceutical, Inc. 1997 Stock Option Plan
Schein Pharmaceutical, Inc. 1998 Employee Stock Purchase Plan
The Retirement Plan of Schein Pharmaceutical, Inc. and Affiliates
+Corporation Service Corp. Edward W. Kerson, Esq.
1013 Centre Road Proskauer Rose LLP
Wilmington, Delaware 19805 1585 Broadway
(302) 636-5454 New York, New York 10036-8299
(Name, address, including zip code, (212) 969-3000
and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
securities Amount maximum maximum
to be to be offering aggregate Amount
registered Registered(1) price per offering of
share price Registration
Common 1,790,890 shares $17.000 $30,445,130(2) $8,981.31
Stock, par
value
$.01 per
share
Common Stock, 186,375 shares $9.5238 $1,774,998(3) $523.62
par value
$.01 per
share
Common Stock, 1,223,460 shares $14.2857 $17,477,983(4) $5,156.00
par value
$.01 per share
Common Stock, 1,387,080 shares $19.0476 $26,420,545(5) $7,794.06
par value
$.01 per
share
Common Stock, 1,918,825 shares $17.000 $32,620,025(6) $9,622.91
par value
$.01 per
share
TOTAL $32,077.91
(1) Represents the maximum number of shares of common
stock, par value $.01 per share ("Common Stock"),
issuable upon exercise of options which may be or have
been granted under the Schein Pharmaceutical, Inc. 1993
Stock Option Plan, 1995 Non-Employee Director Stock
Option Plan, 1997 Stock Option Plan, 1998 Employee
Stock Purchase Plan and the Retirement Plan
(collectively, the "Plans"). Pursuant to Rule 416,
there are also being registered such additional
indeterminate number of shares as may be required to
cover possible adjustments in the number of shares
issuable under the Plans pursuant to the antidilution
provisions thereof.
(2) Calculated solely for purposes of this offering under
Rule 457(h) of the Securities Act of 1933 on the basis
of the initial public offering price of $17.00 per
share.
(3) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) and based on
an exercise price of $9.5238 per share with respect to
options granted to employees of the Company to purchase
186,375 shares of Common Stock.
(4) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) and based on
an exercise price of $14.2857 per share with respect to
options granted to employees, non-employee directors
and employee directors of the Company to purchase
1,223,460 shares of Common Stock.
(5) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) and based on
an exercise price of $19.0476 per share with respect to
options granted to non-employee directors and employee
directors of the Company to purchase 1,387,080 Shares
of Common Stock.
(6) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) and based on
an exercise price of $17.000 per share with respect to
options granted to employees of the Company to purchase
1,918,825 shares of Common Stock.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Section 10(a) prospectuses for the Plans are not
being filed with the Securities and Exchange Commission (the
"Commission") as part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and
Exchange Commission by Schein Pharmaceutical, Inc., a Delaware
corporation (the "Company" or the "Registrant"), are incorporated
herein by reference:
(1) the Company's Prospectus, dated April 8, 1998,
filed with the Commission pursuant to Rule 424(b) under the
Securities Act of 1933;
(2) the description of the Company's Common Stock, par
value $.01 per share, contained in the Company's Registration
Statement filed on Form 8-A (No. 001-14019) pursuant to Section
12 of the Securities Exchange Act of 1934.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934, 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 part hereof from the date of filing such documents.
Any statement in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified
or superseded for the 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 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.
Article SEVENTH of the Company's Certificate of
Incorporation provides that the Corporation shall indemnify and
hold harmless, to the fullest extent authorized by the Delaware
General Corporation Law, its officers and directors against all
expenses, liability and loss actually and reasonably incurred in
connection with any civil, criminal, administrative or
investigative action, suit or proceeding. The Certificate of
Incorporation also extends indemnification to those serving at
the request of the Company as directors, officers, employees or
agents of other enterprises.
In addition Article SEVENTH of the Company's Certificate of
Incorporation provides that no director of the Company shall not
be personally liable for any breach of fiduciary duty. Article
SEVENTH does not eliminate a director's liability (i) for breach
of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts of or omissions of such director not
in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit.
Section 145 of the General Corporation Law of the State of
Delaware permits a corporation to indemnify its directors and
officers against expenses (including attorney's fees), judgments,
fines and amounts paid in settlements actually and reasonably
incurred by them in connection with any action, suit or
proceeding brought by third parties, if such directors or
officers acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or
proceeding, had no reason to believe their conduct was unlawful.
In a derivative action, i.e., one by or in the right of the
corporation, indemnification may be made only for expenses
actually and reasonably incurred by directors and officers in
connection with the defense or settlement of an action or suit,
and only with respect to a matter as to which they shall have
acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interest of the corporation,
except that no indemnification shall be made if such person shall
have been adjudged liable to the corporation, unless and only to
the extent that the court in which the action or suit was brought
shall determine upon application that the defendant officers or
directors are reasonably entitled to indemnity for such expenses
despite such adjudication of liability.
Section 102(b)(7) of the General Corporation Law of the
State of Delaware provides that a corporation may eliminate or
limit the personal liability of a director to the corporation or
its stockholders for monetary damages for breach of fiduciary
duty as a director, provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach
of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of
the State of Delaware, or (iv) for any transaction from which the
director derived an improper personal benefit. No such provision
shall eliminate or limit the liability of a director for any act
or omission occurring prior to the date when such provision
becomes effective.
Pursuant to Section 145 of the General Corporation Law of
the State of Delaware, the Company maintains directors' and
officers' liability insurance coverage.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5.1 Opinion of Proskauer Rose LLP
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Proskauer Rose LLP (included in Exhibit 5.1)
24.1 Power of Attorney (see signature page)
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:
(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 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 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 the 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 undersigned Registrant hereby undertakes 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 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 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 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 Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, 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 New York, State of New
York, on April 9, 1998.
SCHEIN PHARMACEUTICAL, INC.
By: /s/ Martin Sperber
Martin Sperber
Chairman of the Board,
Chief Executive Officer
and President
SIGNATURES AND POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose
signature appears below constitutes and appoints Martin Sperber,
Dariush Ashrafi and Paul Feuerman, and each of them, his true and
lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, to act, without the other, for
him and in his name, place, and stead, in any and all capacities,
to sign a Registration Statement on Form S-8 of Schein
Pharmaceutical, Inc. (the "Company") and any or all amendments
(including post-effective amendments) thereto, relating to the
registration, under the Securities Act of 1933, as amended, of
shares of Common Stock of the Company to be issued pursuant to
the Company's 1993 Stock Option Plan, 1995 Non-Employee Director
Stock Option Plan, 1997 Stock Option Plan, 1998 Employee Stock
Purchase Plan and the Retirement Plan and to file the same, with
all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as full to all
intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, their substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed below by
the following persons in the capacities and on the dates
indicated.
Signatures Title Date
/s/ Martin Sperber Chairman of the Board, April 9, 1998
Martin Sperber Chief Executive Officer,
President and Director
(principal executive
officer)
/s/ Dariush Ashrafi Chief Financial Officer, April 9, 1998
Dariush Ashrafi Executive Vice President
and Director (principal
financial and accounting
officer)
/s/ Paul Feuerman Senior Vice President, April 9, 1998
Paul Feuerman General Counsel and
Director
/s/ David R. Ebsworth Director April 9, 1998
David R. Ebsworth
/s/ Richard L. Goldberg Director April 9, 1998
Richard L. Goldberg
EXHIBIT INDEX
Exhibit Description of Exhibit Page No.
5.1 Opinion of Proskauer Rose LLP
23.1 Consent of BDO Sseidman, LLP
23.2 Consent of Proskauer Rose LLP
(included in Exhibit 5.1)
24.1 Power of Attorney (included in
page II-5 hereof)
EXHIBIT 5.1
April 9, 1998
Schein Pharmaceutical, Inc.
100 Campus Drive
Florham Park, New Jersey 07932
Dear Sirs:
We are acting as counsel to Schein Pharmaceutical,
Inc., a Delaware corporation (the "Company"), in connection with
the Registration Statement on Form S-8 (the "Registration
Statement") filed by the Company under the Securities Act of 1933
relating to 6,506,630 shares (the "Shares") of Common Stock, par
value $.01 per share, of the Company. The Shares may be issued
by the Company pursuant to the Company's 1993 Stock Option Plan,
1995 Non-Employee Director Stock Option Plan, 1997 Stock Option
Plan, 1998 Employee Stock Purchase Plan and the Retirement Plan
(collectively, the "Plans").
We have participated in the preparation of the
Registration Statement and have reviewed the corporate
proceedings in connection with the adoption of the Plans. We
have also examined and relied upon originals or copies, certified
or otherwise authenticated to our satisfaction, of all such
public officials and of representatives of the Company, and have
made such investigation of law, and have discussed with
representatives of the Company and such other persons such
questions of fact, as we have deemed proper and necessary as a
basis for this opinion.
Based upon, and subject to, the foregoing, we are of
the opinion that the Shares are duly authorized and, upon
issuance of the Shares in accordance with the respective Plans,
will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as
Exhibit 5.1 to the Registration Statement. In giving the
foregoing consent, we do not admit that we are in 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 promulgated thereunder.
Very truly yours,
/s/ Proskauer Rose LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Form S-8
Registration Statement pertaining to the 1993 Stock Option Plan,
1995 Non-Employee Director Stock Option Plan, 1997 Stock Option
Plan, 1998 Employee Stock Purchase Plan and the Retirement Plan
of Schein Pharmaceutical, Inc. of our report dated January 30,
1998, except for Note 1 which is as of April 3, 1998, relating to
the consolidated financial statements of Schein Pharmaceutical,
Inc. and Subsidiaries, which is contained in its Prospectus dated
March 13, 1998.
New York, New York
April 8, 1998
/s/ BDO Seidman, LLP
