As filed with the Securities and Exchange Commission on August 3, 1999
Registration No. 333-49827
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
POST-EFFECTIVE AMENDMENT NO.2
TO
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 No.)
incorporation or organization)
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
Retirement Plan of Schein Pharmaceutical, Inc. and Affiliates
Danbury Pharmacal Puerto Rico, Inc. Profit Sharing Plan
Paul Feuerman, Esq. Copies to:
Schein Pharmaceutical, Inc. Allan R. Williams, Esq.
100 Campus Drive Proskauer Rose LLP
Florham Park, New Jersey 07932 1585 Broadway
(973) 593-5500 New York, New York 10036-8299
(Name, address, including zip code, (212) 969-3000
and telephone number,
including area code, of agent for service)
-----------------------------
In addition to the shares of common stock registered hereby, pursuant to
Rule 416(c) of the Securities Act of 1933, this registration statement also
covers an indeterminate amount of interests to be offered or sold pursuant to
the employee benefit plans described herein.
<PAGE>
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.
2
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
------ -----------------------------------------
The following documents filed with the Commission by Schein Pharmaceutical,
Inc., a Delaware corporation (the "Company" or the "Registrant"), are
incorporated herein by reference:
(1) the description of the Company's Common Stock, par value $.01 per
share, contained in the Company's Registration Statement on Form 8-A (File No.
001-14019), filed pursuant to Section 12 of the Securities Exchange Act of 1934;
(2) the Company's Annual Report on Form 10-K, dated March 26, 1999,
filed pursuant to Sections 13 and 15(d) of the Securities Exchange Act of 1934;
(3) the Company's Quarterly Report on Form 10-Q, dated May 7, 1999,
filed pursuant to Sections 13 and 15(d) of the Securities Exchange Act of 1934;
(4) the Retirement Plan of Schein Pharmaceutical, Inc. and Affiliates'
Annual Report on Form 11-K, dated June 29, 1999, filed pursuant to Section 15(d)
of the Securities Exchange Act of 1934; and
(5) the Danbury Pharmacal Puerto Rico, Inc. Profit Sharing Plan's
Annual Report on Form 11-K, dated June 29, 1999, filed pursuant to Section 15(d)
of the Securities Exchange Act of 1934.
All documents subsequently filed by the Company and any of the Company's
employee benefit plans 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 of 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 Company 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 be personally liable to the
Company or its stockholders 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
II-1
<PAGE>
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 and has entered into indemnification agreements with certain of its
directors and officers.
Item 7. Exemption from Registration Claimed.
------- ------------------------------------
Not applicable.
Item 8. Exhibits.
------- ---------
23.1 Consent of BDO Seidman, LLP
24.1 Power of Attorney (see signature page)
The undersigned Registrant hereby undertakes to submit or has submitted the
Retirement Plan of Schein Pharmaceutical, Inc. and Affiliates and the Danbury
Pharmacal Puerto Rico, Inc. Profit Sharing Plan and amendments to each of them
to the Internal Revenue Service ("IRS") in a timely manner and will make all
changes required by the IRS in order to qualify such plans under Section 401 of
the Internal Revenue Code.
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. Notwithstanding the
foregoing, any increase or decrease in the 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 20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
II-2
<PAGE>
(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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities 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.
II-3
<PAGE>
SIGNATURES
The Registrant.
- ---------------
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 Florham Park, State of New Jersey, on this 23rd day
of July 1999.
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, the Retirement Plan
and Danbury Pharmacal Puerto Rico, Inc. Profit Sharing 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, July 23, 1999
- -------------------- Chief Executive Officer,
Martin Sperber President and Director
(principal executive officer)
/s/ Dariush Ashrafi Chief Financial Officer, July 23, 1999
- -------------------- Executive Vice President
Dariush Ashrafi and Director (principal
financial and accounting officer)
/s/ Paul Feuerman Senior Vice President, July 23, 1999
- -------------------- General Counsel and
Paul Feuerman Director
II-4
<PAGE>
/s/ Joseph A. Akers Director July 26, 1999
- --------------------
Joseph A. Akers
/s/ Richard L. Goldberg Director July 23, 1999
- -----------------------
Richard L. Goldberg
/s/ Harvey Rosenthal Director July 23, 1999
- ---------------------
Harvey Rosenthal
The Plans.
- ---------
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Florham Park, State of
New Jersey, on July 23, 1999.
Retirement Plan of Schein
Pharmaceutical, Inc. and Affiliates
By /s/ Dariush Ashrafi
------------------------------
Dariush Ashrafi,
Executive Vice President and
Chief Financial Officer, Chair,
Retirement Plan of Schein
Pharmaceutical, Inc. and
Affiliates Committee
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Florham Park, State of
New Jersey, on July 23, 1999.
Danbury Pharmacal of Puerto Rico, Inc.
Profit Sharing Plan
By /s/ Dariush Ashrafi
--------------------------------
Dariush Ashrafi,
Executive Vice President and
Chief Financial Officer, Chair,
Danbury Pharmacal of
Puerto Rico, Inc.
Profit Sharing Plan Committee
II-5
<PAGE>
EXHIBIT INDEX
Exhibit Description of Exhibit Page No.
------- ---------------------- --------
23.1 Consent of BDO Seidman, LLP
24.1 Powers of Attorney (see signature page)
II-6
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED 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,
the Retirement Plan of Schein Pharmaceutical, Inc. and Danbury Pharmacal Puerto
Rico, Inc. Profit Sharing Plan of our report dated February 10, 1999, relating
to the consolidated financial statements and schedule of Schein Pharmaceutical,
Inc. appearing in the Company's Annual Report on Form 10-K for the year ended
December 26, 1998 and our reports dated June 18, 1999, relating to the financial
statements of the Retirement Plan of Schein Pharmaceutical, Inc. and Affiliates
and to the Danbury Pharmacal Puerto Rico, Inc. Profit Sharing Plan,
respectively, appearing in the respective plan Annual Reports on Form 11-K for
the year ended December 31, 1998.
BDO SEIDMAN, LLP
/s/ BDO Seidman, LLP
New York, New York
August 3, 1999
II-7
