Exhibit 5.1
February 19, 2003
Omnicare, Inc.
100 East RiverCenter Boulevard
Covington, Kentucky 41011
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Omnicare, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-3 filed with the Securities and Exchange
Commission by the Company, and by Omnicare Capital Trust I, Omnicare Capital
Trust II and Omnicare Capital Trust III, each a statutory trust formed under the
laws of the State of Delaware (each a "Trust" and collectively, the "Trusts"),
on February 12, 2003, as amended by Amendment No. 1 thereto filed with the
Commission on February 19, 2003 (the "Registration Statement"). The Registration
Statement relates to the issuance and sale from time to time, pursuant to Rule
415 of the General Rules and Regulations promulgated under the Securities Act of
1933, as amended (the "Securities Act"), of the following securities with an
aggregate initial public offering price of up to $850,000,000: (i) common stock,
par value $1.00 per share, of the Company ("Common Stock"); (ii) one or more
classes or series of preferred stock, no par value per share, of the Company
("Preferred Stock"), interests in which may be represented by depositary shares
of the Company ("Depositary Shares"); (iii) one or more series of debt
securities of the Company ("Debt Securities"), consisting of debentures, notes
and/or other evidences of indebtedness, which may be unsubordinated ("Senior
Debt Securities") or subordinated ("Subordinated Debt Securities") to certain
other obligations of the Company; (iv) guarantees, if any, of the Debt
Securities by certain of the Company's subsidiaries (the "Guarantees" and, such
subsidiaries, the "Subsidiary Guarantors"); (v) warrants to purchase Securities
(as hereinafter defined) of the Company ("Warrants"); (vi) trust preferred
securities of one or more of the Trusts ("Trust Preferred Securities"), and
related guarantees by the Company of the Trust Preferred Securities
(individually, a "Trust Guarantee," and collectively, the "Trust Guarantees");
(vii) purchase contracts obligating holders to purchase Securities (as
hereinafter defined) at a future date or dates ("Purchase Contracts"); and
(viii) units comprised of one or more Securities (as hereinafter defined) in any
combination ("Units," and together with the Common Stock, Preferred Stock,
Depositary Shares, Debt Securities, Guarantees, Warrants, Trust Preferred
Securities, Trust Guarantees and Purchase Contracts, "Securities").
The Senior Debt Securities may be issued under a senior debt
securities indenture in the form filed as an exhibit to the Registration
Statement, as amended or supplemented from time to time (the "Senior
Indenture"), proposed to be entered into between the Company and one or more
trustees (any such trustee, the "Senior Indenture Trustee"). The Subordinated
Debt Securities may be issued under a subordinated debt securities indenture in
the form filed as an exhibit to the Registration Statement, as amended or
supplemented from time to time (the "Subordinated Indenture"), proposed to be
entered into between the Company and one or more trustees chosen by the Company
and qualified to act as such under the Trust Indenture Act of 1939, as amended
(the "TIA") (any such trustee, the
Omnicare, Inc.
February 19, 2003
Page 2
"Subordinated Indenture Trustee"). The Senior Indenture and the Subordinated
Indenture are sometimes hereinafter referred to individually as an "Indenture"
and collectively as the "Indentures." The Warrants may be issued under a warrant
agreement in a form that will be filed as an exhibit to a post-effective
amendment to the Registration Statement or incorporated by reference therein (a
"Warrant Agreement"). The Trust Preferred Securities may be issued by a Trust
pursuant to an amended and restated trust agreement in the form filed as an
exhibit to the Registration Statement, as amended or supplemented from time to
time (a "Trust Agreement"), proposed to be entered into among the Company, as
sponsor, a Property Trustee, a Delaware Trustee and the Administrative Trustees
to be named therein, and each Trust Guarantee may be issued pursuant to a
guarantee agreement in the form filed as an exhibit to the Registration
Statement, as amended or supplemented from time to time (a "Guarantee
Agreement"), proposed to be entered into between the Company and the trustee to
be named therein. The Purchase Contracts may be issued under a purchase contract
agreement in a form that will be filed as an exhibit to a post-effective
amendment to the Registration Statement or incorporated by reference therein (a
"Purchase Contract Agreement"). The Units may be issued under a unit agreement
in a form that will be filed as an exhibit to a post-effective amendment to the
Registration Statement or incorporated by reference therein (a "Unit
Agreement").
This opinion is delivered in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined (i) the Registration Statement; (ii) the form
of Senior Indenture; (iii) the form of Subordinated Indenture; (iv) the form of
Amended and Restated Trust Agreement; (v) the form of Guarantee Agreement; (vi)
the Certificate of Incorporation of the Company, as amended and currently in
effect (the "Certificate of Incorporation"); (vii) the By-laws of the Company as
currently in effect (the "By-laws"); and (viii) the resolutions adopted by the
Board of Directors of the Company (the "Board") relating to the Registration
Statement and the issuance of the Securities (the "Board Resolutions"). We also
have examined originals or copies, certified or otherwise identified to our
satisfaction, of such certificates of officers or other representatives of the
Company, and such other agreements, documents, certificates and records as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Company and the
Subsidiary Guarantors organized under the laws of the State of Delaware, we have
assumed that such parties had the legal power to enter into and perform all
their obligations thereunder and also have assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such parties
of such documents and the validity and binding effect thereof. As to any facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and others.
In our capacity as your counsel in connection with the
Registration Statement, we are familiar with the proceedings taken and proposed
to be taken by the Company in connection with the Registration Statement and the
authorization and issuance of the Securities. For purposes of this opinion, we
have assumed that such proceedings will be timely and properly
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February 19, 2003
Page 3
completed, in accordance with all requirements of applicable Federal, New York
and Delaware laws, in the manner presently proposed.
Based upon the foregoing and in reliance thereon, and subject
to the qualifications and limitations set forth herein, we are of the opinion
that:
1. With respect to any offering of Common Stock (the "Offered
Common Stock"), the shares of the Offered Common Stock (including any Offered
Common Stock duly issued upon conversion, exchange or exercise of any other
Securities) will be duly authorized, validly issued, fully paid and
nonassessable, provided that the consideration therefor is not less than the par
value thereof.
2. With respect to any offering of any series of Preferred
Stock (the "Offered Preferred Stock"), when the Certificate of Designations (as
hereinafter defined) has been duly filed with the Secretary of State of the
State of Delaware, the shares of the Offered Preferred Stock (including any
Offered Preferred Stock duly issued upon conversion, exchange or exercise of any
other Securities), will be duly authorized, validly issued, fully paid and
nonassessable, provided that the consideration therefor is not less than the par
value thereof.
3. With respect to any offering of any series of Depositary
Shares (the "Offered Depositary Shares"), when (i) the deposit agreement
relating to the Offered Depositary Shares (the "Deposit Agreement") in the form
filed as an exhibit to the Registration Statement has been duly executed and
delivered as contemplated by the Board Resolutions or other action by the Board
or a duly appointed committee thereof; and (ii) the Preferred Stock which is
represented by the Offered Depositary Shares is duly authorized, validly issued
and delivered to the Depositary in accordance with the laws of the State of
Delaware, (a) the Offered Depositary Shares will be valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms and (b) when the receipts evidencing the Offered Depositary Shares
("Receipts") are duly issued against the deposit of the Preferred Stock in
accordance with the Deposit Agreement, such Receipts will be validly issued and
will entitle the holders thereof to the rights specified therein and in the
Deposit Agreement.
4. With respect to any offering of any series of Debt
Securities offered under the Senior Indenture or the Subordinated Indenture (the
"Offered Debt Securities"), when (i) the applicable Indenture has been qualified
under the TIA and duly executed and delivered by the Company; and (ii) the
applicable trustee has been qualified under the TIA and a Form T-1 has been
properly filed as an exhibit to the Registration Statement, the Offered Debt
Securities (including any Offered Debt Securities duly issued upon conversion,
exchange or exercise of any other Securities) will be valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms.
5. With respect to any offering of any Guarantees of any
series of Debt Securities offered under the Senior Indenture or the Subordinated
Indenture (the "Offered Guarantees"), when (i) the applicable Indenture has been
qualified under the TIA and duly executed and delivered by the Company and the
Subsidiary Guarantors; and (ii) the applicable trustee has been qualified under
the TIA and a Form T-1 has been properly filed as an exhibit to the Registration
Statement, the Offered Guarantees will be valid and binding obligations of the
applicable Subsidiary Guarantors, enforceable against the applicable Subsidiary
Guarantors in accordance with their terms.
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February 19, 2003
Page 4
6. With respect to any offering of any series of Warrants (the
"Offered Warrants"), when the Warrant Agreement relating to the Offered
Warrants, in the form to be filed as an exhibit to a post-effective amendment to
the Registration Statement or incorporated by reference therein, has been duly
executed and delivered as contemplated by the Board Resolutions or other action
by the Board or a duly appointed committee thereof, the Offered Warrants will be
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
7. With respect to any offering of any Trust Preferred
Securities by a Trust (the "Offered Trust Preferred Securities") and any related
Trust Guarantee by the Company (the "Offered Trust Guarantee"), when (i) the
Offered Trust Preferred Securities have been executed, authenticated and
delivered in accordance with the terms of the applicable Trust Agreement; (ii)
the applicable trustees have been qualified under the TIA and a Form T-1 in
respect of each trustee has been properly filed as an exhibit to the
Registration Statement; (iii) the applicable Trust Agreement in the form filed
as an exhibit to the Registration Statement has been qualified under the TIA and
has been duly executed and delivered by the Company and the other parties
thereto; and (iv) the applicable Guarantee Agreement in the form filed as an
exhibit to the Registration Statement has been qualified under the TIA and the
Offered Trust Guarantee has been duly executed and authenticated in accordance
with the provisions of the applicable Guarantee Agreement, the Offered Trust
Guarantee will be a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
8. With respect to any offering of Purchase Contracts (the
"Offered Purchase Contracts"), when the Purchase Contract Agreement, in the form
to be filed as an exhibit to a post-effective amendment to the Registration
Statement or incorporated by reference therein, has been duly executed and
delivered as contemplated by the Board Resolutions or other action by the Board
or a duly appointed committee thereof, the Offered Purchase Contracts will be
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms.
9. With respect to any offering of any series of Units (the
"Offered Units"), when the Unit Agreement or other applicable agreement relating
to the Offered Units, in the form to be filed as an exhibit to a post-effective
amendment to the Registration Statement or incorporated by reference therein,
has been duly executed and delivered as contemplated by the Board Resolutions or
other action by the Board or a duly appointed committee thereof, the Offered
Units will be valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms.
The opinions set forth herein are subject to the following
assumptions, qualifications, limitations and exceptions being true and correct
at or prior to the time of the delivery of any Securities offered pursuant to
the Registration Statement (collectively, the "Offered Securities"): (i) the
Board, including any appropriate committee appointed thereby, and appropriate
officers of the Company shall have duly established the terms of the Offered
Securities; (ii) the board of directors, including any appropriate committee
appointed thereby, and appropriate officers of the Company and, with respect to
any Guarantees or Trust Guarantees, the Subsidiary Guarantors or the Company, as
the case may be, shall have duly authorized and taken any other necessary
corporate action to approve the issuance and sale of the Offered Securities
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February 19, 2003
Page 5
and related matters (including without limitation with respect to Offered
Preferred Stock, the execution, acknowledgment and filing of a Certificate of
Designations (the "Certificate of Designations") in accordance with the
applicable provisions of the General Corporation Law of the State of Delaware)
and such authorizations and actions have not been rescinded; (iii) the terms of
the issuance and sale of the Offered Securities have been duly established in
conformity with the certificates of incorporation or organization, by-laws and
other similar formation documents of the Company and any applicable Subsidiary
Guarantors (collectively, the "Formation Documents"), any Deposit Agreement,
Indenture, Warrant Agreement, Trust Agreement, Guarantee Agreement, Purchase
Contract or Unit Agreement (collectively, the "Applicable Agreements"), and any
other relevant agreement so as not to violate any applicable law, the Formation
Documents (subject to the further assumption that such Formation Documents have
not been amended from the date hereof in a manner that would affect the validity
of any of the opinions rendered herein), or result in a default under or breach
of any agreement or instrument binding upon the Company or any applicable
Subsidiary Guarantor and so as to comply with any restriction imposed by any
court or governmental body having jurisdiction over the Company or any
applicable Subsidiary Guarantor; (iv) the Offered Securities (and, to the extent
necessary, any securities which are a component of the Offered Purchase
Contracts or Units), and any certificates or receipts representing the interests
in the relevant Offered Securities, have been duly authenticated, executed,
countersigned, registered and delivered upon payment of the agreed-upon
consideration therefor and have been duly issued and sold in accordance with any
relevant agreement (including any Applicable Agreements), any underwriting
agreement with respect to the Offered Securities or any other duly authorized,
executed and delivered, applicable, valid and binding purchase agreement, or as
otherwise contemplated by the Registration Statement or any post-effective
amendment thereto, and any Prospectus Supplement relating thereto; (v) the
Registration Statement, as finally amended (including all necessary
post-effective amendments) and any additional registration statement filed under
Rule 462 will have been declared effective under the Act and such effectiveness
shall not have been terminated or rescinded; (vi) an appropriate Prospectus
Supplement will have been prepared, delivered and filed in compliance with the
Securities Act and the applicable rules and regulations thereunder describing
the Offered Securities offered thereby; (vii) the Offered Securities will be
issued and sold in compliance with applicable Federal and state securities laws
and solely in the manner stated in the Registration Statement and the applicable
Prospectus Supplement and there will not have occurred any change in law
affecting the validity of the opinions rendered herein; (viii) if the Offered
Securities will be sold pursuant to a firm commitment underwritten offering, the
underwriting agreement with respect to the Offered Securities in the form filed
as an exhibit to the Registration Statement or any post-effective amendment
thereto, or incorporated by reference therein, has been duly authorized,
executed and delivered by the Company and the other parties thereto; and (ix) in
the case of an Applicable Agreement or other agreement or instrument pursuant to
which any Securities are to be issued, there shall be no terms or provisions
contained therein which would affect the validity of any of the opinions
rendered herein.
We also have assumed that (i) the Senior Indenture and the
Subordinated Indenture each will be duly authorized, executed and delivered by
the respective trustees, and that any Debt Securities that may be issued will be
authenticated by duly authorized officers of the applicable trustee; (ii) any
Trust Agreement and Guarantee Agreement, respectively, will be duly authorized,
executed and delivered by the applicable trustees; (iii) any Deposit Agreement
will be duly authorized, executed and delivered by the Depositary, and the
Depositary Receipts will be duly signed by the Depositary; and (iv) any Warrant
Agreements, any Purchase Contracts and any
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February 19, 2003
Page 6
Unit Agreements will be duly authorized, executed, delivered and duly signed by
the applicable parties thereto other than the Company.
With respect to opinion (7) above, we have relied on the
opinion of Richards, Layton & Finger, P.A., dated as of the date hereof, as to
the Trusts and the validity and legality of the Trust Preferred Securities and
related documents (other than the Trust Guarantees).
Members of our firm are admitted to the Bar in the State of
New York and we do not express any opinion as to the laws of any jurisdiction
other than the laws of the State of New York, the General Corporation Law of the
State of Delaware, the Delaware Limited Liability Act, the Delaware Revised
Uniform Limited Partnership Act and the laws of the United States of America to
the extent referred to specifically herein. We do not express any opinion with
respect to the application of the Commodity Exchange Act, as amended, or the
rules, regulations or interpretations of the Commodity Futures Trading
Commission to Securities, the payment of principal or interest on which will be
determined by reference to one or more currency exchange rates, commodity
prices, equity indices or other factors. The Securities may be issued from time
to time on a delayed or continuous basis, but this opinion is limited to the
laws, including the rules and regulations thereunder, as in effect on the date
hereof. We disclaim any obligation to advise you of any change in any of these
sources of law or subsequent legal or factual developments which might affect
any matters or opinions set forth herein.
Any opinion set forth herein as to enforceability of
obligations of the Company is subject to: (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws affecting the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law); (ii) provisions of law which may require that a judgment for money damages
rendered by a court in the United States be expressed only in United States
dollars; (iii) requirements that a claim with respect to any Debt Securities
denominated other than in U.S. dollars (or a judgment denominated other than in
U.S. dollars in respect of such claim) be converted into U.S. dollars at a rate
of exchange prevailing on a date determined pursuant to applicable law; and (iv)
governmental authority to limit, delay or prohibit the making of payments
outside the United States or in foreign currency or composite currency. Rights
to indemnification and contribution may also be limited by Federal and state
securities laws.
We express no opinion as to the validity, legally binding
effect or enforceability of any provision in any agreement or instrument that
(i) requires or relates to payment of any interest at a rate or in an amount
which a court would determine in the circumstances under applicable law to be
commercially unreasonable or a penalty or a forfeiture or (ii) relates to
governing law and submission by the parties to the jurisdiction of one or more
particular courts.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as Exhibit 5.1 to the Registration Statement.
We also consent to the reference to our firm under the heading "Legal Matters"
in the Registration Statement. In giving this consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Securities Act or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Dewey Ballantine LLP