Omnicell, Inc.
OMNICELL, Inc (Form: S-8, Received: 03/17/2008 16:50:12)

 

As filed with the Securities and Exchange Commission on March 17, 2008               Registration No. 333-

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549


FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

OMNICELL, INC.

(Exact name of registrant as specified in its charter)

Delaware

 

94-3166458

(State of Incorporation)

 

(I.R.S. Employer Identification No.)

1201 Charleston Road

Mountain View, CA  94043

(650) 251-6100

(Address of principal executive offices)

1999 Equity Incentive Plan

(Full title of the plans)

Randall A. Lipps

President and Chief Executive Officer

1201 Charleston Road

Mountain View, CA  94043

(650) 251-6100

(Name, address, including zip code, and telephone number, including area code, of agent for service)


Copies to:

Robert J. Brigham, Esq.

Cooley Godward Kronish LLP

Five Palo Alto Square

3000 El Camino Real

Palo Alto, CA  94306

(650) 843-5000


Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act:

Large accelerated filer  o

 

 

 

Accelerated filer x

Non-accelerated filer   o

 

(Do not check if a smaller reporting company)

 

Smaller reporting company o

CALCULATION OF REGISTRATION FEE

Title of Securities
to be Registered (1)

 

Amount to be Registered (2)

 

Proposed Maximum
Offering
Price per Share (3)

 

Proposed Maximum
Aggregate
Offering Price (3)

 

Amount of
Registration Fee

 

Common Stock, par value $0.001 per share

 

1,903,580 shares

 

$18.85

 

$35,882,483.00

 

$1,410.18

 


(1)                                   Includes associated rights to purchase shares of the Registrant’s Series A Junior Participating Preferred Stock, par value $0.001 per share (“ Preferred Share Purchase Rights ”). Preferred Share Purchase Rights are attached to shares of the Registrant’s Common Stock in accordance with the rights agreement, dated as of February 6, 2003, as amended from time to time, by and between the Registrant and EquiServe Trust Company, N.A., as Rights Agent (the “ Rights Agreement ”). The Preferred Share Purchase Rights are not exercisable until the occurrence of certain events specified in the Rights Agreement, are evidenced by the stock certificates representing the Common Stock and are transferable solely with the Common Stock. The value attributable to the Preferred Share Purchase Rights, if any, is reflected in the value of the Common Stock.

(2)                                   Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “ Securities Act ”), this Registration Statement shall also cover any additional shares of Registrant’s Common Stock that become issuable under the plans set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Registrant’s Common Stock.

(3)                                   Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) promulgated under the Securities Act.  The offering price per share and aggregate offering price are based upon the average of the high and low prices of Registrant’s Common Stock as reported on The NASDAQ Global Market on March 12, 2008, in accordance with Rule 457(c) of the Securities Act.

The registration fee is calculated as follows:

Securities

 

Number of Shares

 

Offering Price
Per Share

 

Aggregate Offering Price

 

Shares reserved for future issuance under the 1999 Equity Incentive Plan

 

1,903,580

 

$18.85

 

$

35,882,483.00

 

Registration Fee

 

 

 

 

 

$

1,410.18

 

 

 



 

EXPLANATORY NOTE

 

This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 1,903,580 shares of the Registrant’s Common Stock to be issued pursuant to the Registrant’s 1999 Equity Incentive Plan.

 

INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION

STATEMENTS ON FORM S-8

 

The contents of: (i) the Registration Statement on Form S-8 (File No. 333-142857) filed with the Securities and Exchange Commission on May 11, 2007, (ii)  the Registration Statement on Form S-8 (File No. 333-132556) filed with the Securities and Exchange Commission on March 17, 2006, (iii) the Registration Statement on Form S-8 (File No. 333-125080) filed with the Securities and Exchange Commission on May 19, 2005, (iv) the Registration Statement on Form S-8 (File No. 333-116103) filed with the Securities and Exchange Commission on June 2, 2004, (v) the Registration Statement on Form S-8 (File No. 333-104427) filed with the Securities and Exchange Commission on April 9, 2003 (vi) the Registration Statement on Form S-8 (File No. 333-82818) filed with the Securities and Exchange Commission on February 14, 2002, and (vii) the Registration Statement on Form S-8 (File No. 333-67828) filed with the Securities and Exchange Commission on August 17, 2001, are incorporated by reference herein.

 

ITEM 8.  EXHIBITS

 

Exhibit
Number

 

Description

4.1(1)

 

Amended and Restated Certificate of Incorporation of the Registrant.

 

 

 

4.2(2)

 

Certificate of Designation of Series A Junior Participating Preferred Stock.

 

 

 

4.3(3)

 

Bylaws of the Registrant, as amended.

 

 

 

4.4(1)

 

Form of Common Stock Certificate.

 

 

 

4.5(4)

 

Rights Agreement, dated February 6, 2003, between Registrant and EquiServe Trust Company, N.A.

 

 

 

5.1

 

Opinion of Cooley Godward Kronish LLP.

 

 

 

23.1

 

Consent of Independent Registered Public Accounting Firm.

 

 

 

23.2

 

Consent of Cooley Godward Kronish LLP is contained in Exhibit 5.1 to this Registration Statement.

 

 

 

24.1

 

Power of Attorney is contained on the signature pages.

 

 

 

99.1(5)

 

1999 Equity Incentive Plan, as amended.


(1)           Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-1 (File No. 333-57024), and amendments thereto, originally filed with the Securities and Exchange Commission on March 14, 2001, and incorporated herein by reference.

 

(2)           Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-K (File No. 000-33043), and amendments thereto, originally filed with the Securities and Exchange Commission on March 28, 2003, and incorporated herein by reference.

 

2



 

(3)           Previously filed as an exhibit to the Registrant’s Quarterly Report on Form 10-Q (File No. 000-33043) filed with the Securities and Exchange Commission on August 9, 2007, and incorporated herein by reference.

 

(4)           Previously filed as an exhibit to the Registrant’s current report on Form 8-K (File No. 000-33043) filed with the Securities and Exchange Commission on February 14, 2003, and incorporated herein by reference.

 

(5)           Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-K (File No. 000-33043) originally filed with the Securities and Exchange Commission on March 23, 2007, and incorporated herein by reference.

 

3



 

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 Mountain View, State of California, on this 17th day of March, 2008.

 

OMNICELL, INC.

 

 

By:

/s/ Robin G. Seim

 

 

Robin G. Seim

 

 

Vice President of Finance and Chief Financial Officer

 

 

(Principal Financial and Accounting Officer)

 

4



 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS , that each person whose signature appears below constitutes and appoints Randall A. Lipps and Robin G. Seim, and each or any one of them, 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 (including post-effective 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 (the “SEC”), and generally to do all such things in their names and behalf in their capacities as officers and directors to enable the Registrant to comply with the provisions of the Securities Act of 1933 and all requirements of the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully 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, or their or his substitutes or substitute, 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 below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Signatures

 

Title

 

Date

 

 

 

 

 

/s/ RANDALL A. LIPPS

 

Chief Executive Officer, President and Chairman

 

March  17, 2008

Randall A. Lipps

 

of the Board (Principal Executive Officer)

 

 

 

 

 

 

 

/s/ ROBIN G. SEIM

 

Vice President of Finance, Chief Financial Officer

 

March  17, 2008

Robin G. Seim

 

(Principal Financial and Accounting Officer)

 

 

 

 

 

 

 

/s/ MARY E. FOLEY

 

Director

 

March  17, 2008

Mary E. Foley

 

 

 

 

 

 

 

 

 

/s/JAMES T. JUDSON

 

Director

 

March  17, 2008

James T. Judson

 

 

 

 

 

 

 

 

 

/s/ RANDY D. LINDHOLM

 

Director

 

March  17, 2008

Randy D. Lindholm

 

 

 

 

 

 

 

 

 

/s/ GARY S. PETERSMEYER

 

Director

 

March  17, 2008

Gary S. Petersmeyer

 

 

 

 

 

 

 

 

 

/s/ DONALD C. WEGMILLER

 

Director

 

March  17, 2008

Donald C. Wegmiller

 

 

 

 

 

 

 

 

 

/s/ SARA J. WHITE

 

Director

 

March  17, 2008

Sara J. White

 

 

 

 

 

 

 

 

 

/s/ JOSEPH E. WHITTERS

 

Director

 

March  17, 2008

Joseph E. Whitters

 

 

 

 

 

 

 

 

 

/s/ WILLIAM H. YOUNGER, JR.

 

Director

 

March  17, 2008

William H. Younger, Jr.

 

 

 

 

 

5



 

EXHIBIT INDEX

Exhibit
Number

 

Description

4.1(1)

 

Amended and Restated Certificate of Incorporation of the Registrant.

 

 

 

4.2(2)

 

Certificate of Designation of Series A Junior Participating Preferred Stock.

 

 

 

4.3(3)

 

Bylaws of the Registrant, as amended.

 

 

 

4.4(1)

 

Form of Common Stock Certificate.

 

 

 

4.5(4)

 

Rights Agreement, dated February 6, 2003, between Registrant and EquiServe Trust Company, N.A.

 

 

 

5.1

 

Opinion of Cooley Godward Kronish LLP.

 

 

 

23.1

 

Consent of Independent Registered Public Accounting Firm.

 

 

 

23.2

 

Consent of Cooley Godward Kronish LLP is contained in Exhibit 5.1 to this Registration Statement.

 

 

 

24.1

 

Power of Attorney is contained on the signature pages.

 

 

 

99.1(5)

 

1999 Equity Incentive Plan, as amended.


(1)           Previously filed as an exhibit to the Registrant’s Registration Statement on Form S-1 (File No. 333-57024), and amendments thereto, originally filed with the Securities and Exchange Commission on March 14, 2001, and incorporated herein by reference.

 

(2)           Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-K (File No. 000-33043), and amendments thereto, originally filed with the Securities and Exchange Commission on March 28, 2003, and incorporated herein by reference.

 

(3)           Previously filed as an exhibit to the Registrant’s Quarterly Report on Form 10-Q (File No. 000-33043) filed with the Securities and Exchange Commission on August 9, 2007, and incorporated herein by reference.

 

(4)           Previously filed as an exhibit to the Registrant’s current report on Form 8-K (File No. 000-33043) filed with the Securities and Exchange Commission on February 14, 2003, and incorporated herein by reference.

 

(5)           Previously filed as an exhibit to the Registrant’s Annual Report on Form 10-K (File No. 000-33043) originally filed with the Securities and Exchange Commission on March 23, 2007, and incorporated herein by reference.

 

6


 

 

 

Exhibit 5.1

 

 

March 17, 2008

 

Omnicell, Inc.

1201 Charleston Road

Mountain View, CA 94043

 

Ladies and Gentlemen:

 

You have requested our opinion with respect to certain matters in connection with the filing by Omnicell, Inc. (the “ Company ”) of a Registration Statement on Form S-8 (the “ Registration Statement ”) with the Securities and Exchange Commission covering the offering of up to 1,903,580 shares of the Company’s Common Stock, par value $0.001 per share (“ Common Stock ”), pursuant to the Company’s 1999 Equity Incentive Plan (the “ Shares ”).

 

In connection with this opinion, we have examined the Registration Statement and related Prospectus, the Company’s Amended and Restated Certificate of Incorporation and Bylaws, as currently in effect, the Company’s 1999 Equity Incentive Plan (the “ 1999 Plan ”) and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion.  We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof.

 

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the 1999 Plan, and the Registration Statement and related Prospectus, will be validly issued, fully paid and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

 

We consent to the filing of this opinion as an exhibit to the Registration Statement.

 

Sincerely,

 

COOLEY GODWARD KRONISH LLP

 

By:

/s/ Sally A. Kay

 

Sally A. Kay, Esq.

 

 


 

 

 

 

EXHIBIT 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 1999 Equity Incentive Plan of Omnicell, Inc. of our reports dated March 13, 2008, with respect to the consolidated financial statements and schedule of Omnicell, Inc., and the effectiveness of internal control over financial reporting of Omnicell, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2007, filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP

 

Palo Alto, California

March 13, 2008