As filed with the Securities and Exchange Commission on June 15, 2004.
Registration No.
UNITED STATES SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
| NEIGHBORCARE, INC. (Exact Name of Registrant as Specified in Its Charter) |
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| Pennsylvania (State or other jurisdiction of incorporation or organization) |
06-1132947 (I.R.S. Employer Identification No.) |
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| 601 East Pratt Street Baltimore, Maryland (Address of Principal Executive Offices) |
21202 (Zip Code) |
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| NeighborCare, Inc. 2004 Performance Incentive Plan (Full title of plan) |
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| John F. Gaither, Jr. Senior Vice President, General Counsel and Secretary NeigborCare, Inc. 601 East Pratt Street Baltimore, Maryland 21202 (Name and address of agent for service) |
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| 410-528-7300 (Telephone number, including area code, of agent for service) |
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| Copies of communications to: Richard J. McMahon, Esquire Blank Rome LLP One Logan Square Philadelphia, PA 19103 (215) 569-5500 Facsimile (215) 569-5555 |
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CALCULATION OF REGISTRATION FEE
| Title of securities to be registered |
Amount to be registered(1) |
Proposed maximum offering price per share |
Proposed maximum aggregate offering price |
Amount of registration fee |
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|---|---|---|---|---|---|---|---|---|
| Common Stock, par value $0.02 per share | 5,000,000 | $30.72(2) | $153,600,000(2) | $19,462(2) | ||||
PART I
Information Required in the Section 10(a) Prospectus
NeighborCare, Inc. (the "Company") is filing this registration statement on Form S-8 (the "Registration Statement") in connection with registering the Company's 2004 Performance Incentive Plan.
The documents containing the information specified in Part I of Form S-8 will be sent or given to participants in the Company's 2004 Performance Incentive Plan as specified by Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act").
Such documents are not being filed with the Commission, but constitute (along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
The Company will furnish without charge to each participant in the Company's 2004 Performance Incentive Plan, upon the written or oral request of such person, a copy of any or all of the documents (i) incorporated by reference in Item 3 of Part II of this Registration Statement, which are incorporated by reference into the prospectus for the Company's 2004 Performance Incentive Plan, and (ii) any other documents required to be delivered pursuant to Rule 428(b) promulgated by the Commission under the Securities Act. Requests should be directed to John F. Gaither, Jr., Senior Vice President, General Counsel and Secretary, NeighborCare, Inc., 601 East Pratt Street, 3rd Floor, Baltimore, Maryland 21202, telephone (410) 528-7300.
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PART II
Information Required In The Registration Statement
Item 3. Incorporation of Certain Documents by Reference.
The following documents, as filed with the Securities and Exchange Commission, are incorporated by reference in this Registration Statement:
All documents filed by the registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement 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 in this Registration Statement and the prospectus for the Company's 2004 Performance Incentive Plan (other than reports furnished pursuant to Items 9 and 12 of Form 8-K) and to be part of this Registration Statement and the prospectus for the Company's 2004 Performance Incentive Plan from the date of the filing of such documents.
Any statement contained in the documents incorporated, or deemed to be incorporated, by reference herein or therein shall be deemed to be modified or superseded for purposes of this Registration Statement and the prospectus for the Company's 2004 Performance Incentive Plan to the extent that a statement contained herein or therein or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference herein or therein 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 and the prospectus for the Company's 2004 Performance Incentive Plan.
All information appearing in this Registration Statement and the prospectus for the Company's 2004 Performance Incentive Plan is qualified in its entirety by the detailed information, including financial statements, appearing in the documents incorporated herein or therein by reference.
Item 4. Description of Securities.
Not Applicable.
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Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
As permitted by Pennsylvania corporation law, the Company's bylaws provide that a director will not be personally liable for monetary damages for any action taken, or any failure to take any action, unless the director breaches or fails to perform the duties of his or her office under Pennsylvania corporation law, and the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness. These provisions of the Company's bylaws, however, do not apply to the responsibility or liability of a director pursuant to any criminal statute, or to the liability of a director for the payment of taxes pursuant to local, Pennsylvania or federal law.
The Company's bylaws provide that the Company must indemnify its directors and officers to the fullest extent permitted by law against expenses reasonably incurred by them in connection with any threatened, pending or completed action, suit or proceeding to which they are or were a party, or are threatened to be made a party, by reason of being or having been a director or officer of the Company, or serving or having served any other business enterprise or trust as a director, officer, employee, general partner, agent or fiduciary at the Company's request. The Company's bylaws also permit it to indemnify any person in any situation not covered by its bylaws to the extent permitted by applicable law. However, under the Company's bylaws, no indemnification will be provided to any of the Company's directors or officers (i) for liabilities arising under Section 16(b) of the Exchange Act; (ii) if a final unappealable judgment or award establishes that such director or officer engaged in self-dealing, willful misconduct or recklessness; (iii) for expenses or liabilities which have been paid directly to such person by an insurance carrier and (iv) for amounts paid in settlement of any action, suit, or proceeding without the written consent of the Company.
Sections 1741 through 1750 of Subchapter 17D of Pennsylvania corporation law contain provisions for mandatory and discretionary indemnification of a representative of the corporation, including, but not limited to, its directors and officers. Under Section 1741, subject to certain limitations, a corporation has the power to indemnify directors and officers under certain prescribed circumstances against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with an action or proceeding, whether civil, criminal, administrative or investigative (excluding derivative actions) to which any of them is a party by reason of his or her being a representative of the corporation or serving at the request of the corporation as a representative of another corporation, partnership, joint venture, trust or other enterprise, if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Section 1742 provides for indemnification in derivative actions except in respect of any claim, issue or matter as to which an officer or director has been adjudged to be liable to the corporation unless and only to the extent that the proper court determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for the expenses that the court deems proper.
Under Section 1743, indemnification is mandatory to the extent that an officer or director has been successful on the merits or otherwise in defense of any action or proceeding referred to in Section 1741 or 1742 above if the appropriate standards of conduct are met.
Section 1744 provides that, unless ordered by a court, any indemnification under Section 1741 or 1742 will be made by the corporation only as authorized in the specific case upon a determination that an officer or director met the applicable standard of conduct set forth in those sections, and such
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determination will be made by (i) the board of directors by a majority vote of a quorum of directors not parties to the action or proceeding; (ii) if a quorum is not obtainable, or if obtainable and a majority of disinterested directors so directs, by independent legal counsel; or (iii) by the shareholders.
Section 1745 provides that expenses incurred by an officer or director in defending any action or proceeding referred to in Subchapter 17D of Pennsylvania corporation law may be paid by a corporation in advance of the final disposition of such action or proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount if it is ultimately determined that he or she is not entitled to be indemnified by the corporation.
Section 1746 provides generally that, except in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or recklessness, the indemnification and advancement of expenses provided by Subchapter 17D of Pennsylvania corporation law will not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding that office.
Section 1747 grants to a corporation the power to purchase and maintain insurance on behalf of its directors and officers against any liability incurred by them in their capacity as such directors or officers, whether or not the corporation would have the power to indemnify such person against that liability under the provisions of Subchapter 17D of Pennsylvania corporation law.
Sections 1748 and 1749 extend the indemnification and advancement of expenses provisions of Subchapter 17D to successor corporations in fundamental changes and to representatives serving as fiduciaries of employee benefit plans.
Section 1750 provides that the indemnification and advancement of expenses provided by, or granted pursuant to, Subchapter 17D will, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be an officer or director of the corporation and will inure to the benefit of the heirs and personal representative of such person.
Item 7. Exemption from Registration Claimed.
Not Applicable.
The following exhibits are filed as part of this Registration Statement or, where so indicated have been previously filed and are incorporated herein by reference:
| Exhibit Number |
Description |
|
|---|---|---|
| 5.1 | Opinion of Blank Rome LLP | |
| 23.1 | Consent of Independent Registered Public Accounting Firm | |
| 23.2 | Consent of Blank Rome LLP (included in Exhibit 5.1) | |
| 24.1 | Power of Attorney (included on signature page) |
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement.
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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 this 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 Baltimore, State of Maryland, on June 15, 2004.
| NEIGHBORCARE, INC. | |||
By: |
/s/ JOHN F. GAITHER, JR. John F. Gaither, Jr. Senior Vice President, General Counsel and Secretary |
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints John J. Arlotta and John F. Gaither, Jr., and each of them, his true and lawful attorneys-in-fact and agents, 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 (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documentation 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 enable NeighborCare, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, as fully to all intents and purposes as he might or could do in person, hereby ratifying all that said attorneys-in-fact and agents, or 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 by the following persons on June 15, 2004, in the capacities indicated:
| Signatures |
Title |
|
|---|---|---|
| /s/ JOHN J. ARLOTTA John J. Arlotta |
Chairman of the Board, President and Chief Executive Officer |
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/s/ JAMES H. BLOEM James H. Bloem |
Director |
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James E. Dalton, Jr. |
Director |
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/s/ JAMES D. DONDERO James D. Dondero |
Director |
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/s/ ROBERT H. FISH Robert H. Fish |
Director |
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/s/ DR. PHILIP P. GERBINO Dr. Philip P. Gerbino |
Director |
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/s/ ARTHUR J. REIMERS Arthur J. Reimers |
Director |
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/s/ PHYLLIS R. YALE Phyllis R. Yale |
Director |
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/s/ RICHARD W. SUNDERLAND, JR. Richard W. Sunderland, Jr. |
Chief Financial Officer |
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| 5.1 | Opinion of Blank Rome LLP | |
| 23.1 | Consent of Independent Registered Public Accouting Firm | |
| 23.2 | Consent of Blank Rome LLP (included in Exhibit 5.1) | |
| 24.1 | Power of Attorney (included on signature page) |