As filed with the Securities and Exchange Commission via EDGAR on August 21,
1996
Registration No._________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HARBORSIDE HEALTHCARE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 04-3307188
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
470 ATLANTIC AVENUE
BOSTON, MASSACHUSETTS 02210
(617) 556-1515
(Address of Principal Executive Offices) (Zip Code)
HARBORSIDE HEALTHCARE CORPORATION
1996 LONG-TERM STOCK INCENTIVE PLAN,
HARBORSIDE HEALTHCARE CORPORATION
1996 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
and
HARBORSIDE HEALTHCARE CORPORATION DIRECTORS RETAINER FEE PLAN
(Full titles of the plans)
STEPHEN L. GUILLARD
CHIEF EXECUTIVE OFFICER
HARBORSIDE HEALTHCARE CORPORATION
470 ATLANTIC AVENUE
BOSTON, MA 02210
(Name and address of agent for service)
(617) 556-1515
(Telephone number, including area code, of agent for service)
COPIES TO:
Carl L. Reisner, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
(212) 373-3000
(COVER CONTINUED ON NEXT PAGE)
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum Amount
Securities to be Amount to be Offering PriceAggregate Offering of Registration
Registered Registered (1) Per Share (2) Price (2) Fee (2)
<S> <C> <C> <C> <C>
Common Stock, $.01 par
value per share 417,000 shares (3) $ 11.75 $4,899,750.00 $ 1,689.57 (6)
Common Stock, $.01 par
value per share 80,000 shares (4) $ 8.15 $ 652,000.00 $ 224.83 (6)
Common Stock, $.01 par
value per share 303,000 shares (5) $10.06 $3,048,180.00 $ 1,051.10 (6)
</TABLE>
(1) Consists of 680,000 shares reserved for issuance under the Harborside
Healthcare Corporation 1996 Long-Term Stock Incentive Plan, 105,000 shares
reserved for issuance under the Harborside Healthcare 1996 Stock Option
Plan for Non-Employee Directors and 15,000 shares reserved for issuance
under the Harborside Healthcare Corporation Directors Retainer Fee Plan.
This registration statement also relates to such indeterminate number of
additional shares as may be issuable as a result of stock splits, stock
dividends or additional similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h)(1) under the Securities Act of 1933, as
amended.
(3) Represents 357,000 shares reserved for issuance pursuant to stock options
having an exercise price of $11.75 per share, granted pursuant to the
Harborside Healthcare Corporation 1996 Long-Term Stock Incentive Plan and
60,000 shares reserved for issuance pursuant to stock options having an
exercise price of $11.75 per share, granted pursuant to the Harborside
Healthcare Corporation 1996 Stock Option Plan for Non-Employee Directors.
The registration fee for such shares was calculated in accordance with Rule
457(h)(1) under the Securities Act of 1933, as amended, based on the
exercise price of the options.
(4) Represents 80,000 shares reserved for issuance pursuant to stock options
having an exercise price of $8.15 per share, granted pursuant to the
Harborside Healthcare Corporation 1996 Long-Term Stock Incentive Plan. The
registration fee for such shares was calculated in accordance with Rule
457(h)(1) under the Securities Act of 1933, as amended, based on the
exercise price of the options.
(5) Consists of 243,000 shares reserved for issuance under the Harborside
Healthcare Corporation 1996 Long-Term Stock Incentive Plan, 45,000 shares
reserved for issuance under the Harborside Healthcare Corporation 1996
Stock Option Plan for Non-Employee Directors and 15,000 shares reserved for
issuance under the Harborside Healthcare Corporation Directors Retainer Fee
Plan. The registration fee for such shares was calculated in accordance
with Rule 457(h)(1) under the Securities Act of 1933, as amended, based on
the average of the high and low prices of the shares on August 20, 1996 as
reported on the consolidated reporting system of the New York Stock
Exchange.
(6) One payment in the amount of $2,965.50 has been submitted concurrently with
this filing in payment of the aggregate Registration Fee.
Page 2 of 17 pages
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Not required to be filed with this registration statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Harborside Healthcare Corporation (the
"Company") with the Securities and Exchange Commission are incorporated herein
by reference:
1. The Company's prospectus dated June 11, 1996, filed pursuant to
Rule 424(b) promulgated under the Securities Act of 1933 and relating to the
Company's registration statement on Form S-1 (Registration No. 333-3096),
which was declared effective on June 10, 1996.
2. The description of the Company's common stock, par value $0.01 per
share (the "Common Stock"), contained in the Company's registration statement
on Form 8-A dated April 29, 1996 and filed pursuant to Section 12(g) of the
Securities Exchange Act of 1934.
3. The Company's Quarterly Report on Form 10-Q, for the quarterly period
ended June 30, 1996, filed by the Company on August 14, 1996.
All other documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 subsequent to the date of
this registration statement and prior to the filing of a post-effective
amendment which indicates that all securities registered hereby 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.
Page 3 of 17 pages
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a Delaware corporation may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation or enterprise, against expenses, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
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
reasonable cause to believe his conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above, against expenses
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted under similar standards, except
that no indemnification may be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine that despite
the adjudication of liability, such person is fairly and reasonably entitled
to be indemnified for such expenses which the court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense of
any claim, issue, or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of
any other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
incurred by him in any such capacity or arising out of his status as such
Page 4 of 17 pages
<PAGE>
whether or not the corporation would have the power to indemnify him against
such liabilities under such Section 145.
Section 102(b)(7) of the DGCL provides that a corporation in its original
certificate of incorporation or an amendment thereto validly approved by
stockholders may eliminate or limit personal liability of members of its board
of directors or governing body for breach of a director's fiduciary duty.
However, no such provision may eliminate or limit the liability of a director
for breaching his duty of loyalty, failing to act in good faith, engaging in
intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase which was illegal, or obtaining an improper
personal benefit. A provision of this type has no effect on the availability
of equitable remedies, such as injunction or rescission, for breach of
fiduciary duty. The Company's Amended and Restated Certificate of
Incorporation contains such a provision.
The Company's Amended and Restated Certificate of Incorporation provides
that, to the extent not prohibited by law, the Company shall indemnify any
person who is or was made, or threatened to be made, a party to any
threatened, pending or completed action, suit or proceeding (a "Proceeding"),
whether civil, criminal, administrative or investigative, including, without
limitation, an action by or in the right of the Company to procure a judgment
in its favor, by reason of the fact that such person, or a person of whom such
person is the legal representative, is or was a director or officer of the
Company, or is or was serving as a director, officer, employee or agent or in
any other capacity at the request of the Company for any other company,
partnership, joint venture, trust, employee benefit plan or other enterprise
(an "Other Entity") while serving as a director or officer of the Company,
against judgments, fines, penalties, excise taxes, amounts paid in settlement
and costs, charges and expenses (including attorneys' fees and disbursements)
actually and reasonably incurred by such person in connection with such
Proceeding if such person acted in good faith and in a manner such person
believed to be in or not opposed to the best interests of the Company and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. To the extent specified by the board
of directors of the Company at any time and to the extent not prohibited by
law, the Company may indemnify any person who is or was made, or threatened to
be made, a party to any threatened, pending or completed Proceeding, whether
civil, criminal, administrative or investigative, including, without
limitation, an action by or in the right of the Company to procure a judgment
in its favor, by reason of the fact that such person is or was an employee or
agent of the Company, or is or was serving as a director, officer, employee or
agent or in any other capacity at the request of the Company for any Other
Entity, against judgment, fines, penalties, excise taxes, amounts paid in
settlement and costs, charges and expenses (including attorneys' fees and
disbursements) actually and reasonably incurred by such person in connection
with such Proceeding if such person acted in good faith and in a manner such
person believed to be in or not opposed to the best interests of the Company
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. In addition, the Company's
Amended and Restated Certificate of Incorporation also permits the board of
directors of the Company to authorize the Company to purchase and maintain
insurance against any liability asserted against any director, officer,
employee or agent of the Company arising out of his capacity as such.
Page 5 of 17 pages
<PAGE>
The underwriting agreement between the Company and the underwriters
relating to the initial public offering of the shares of Common Stock of the
Company, registered under the Company's registration statement on Form S-1
(Registration No. 333-3096), contains provisions by which each of the
underwriters agrees to indemnify the Company, its officers and directors and
each person who controls the Company within the meaning of the Securities Act
of 1933, against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Specimen common stock certificate (incorporated by reference to
Exhibit 4.1 to the Company's registration statement on Form S-1,
No. 333-3096)
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison as to the legality
of the shares of Common Stock being registered
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Howard, Wershbale & Co.
23.3 Consent of Leverone & Company
23.4 Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included in
Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of this registration
statement)
Page 6 of 17 pages
<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. Notwithstanding the foregoing, any
increase or decrease in 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 Securities and Exchange Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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 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.
(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 that 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
Page 7 of 17 pages
<PAGE>
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.
Page 8 of 17 pages
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all 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 Boston, Commonwealth of Massachusetts, on the 20th
day of August, 1996.
HARBORSIDE HEALTHCARE CORPORATION
By: /S/ STEPHEN L. GUILLARD
------------------------
Name: Stephen L. Guillard
Title: President, Chief Executive Officer and Director
The registrant and each person whose signature appears below constitutes
and appoints Stephen L. Guillard, William H. Stephan and Bruce J. Beardsley
and each of them singly, his, her or its true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him, her or it
and in his, her, or its name, place and stead, in any and all capacities, to
sign and file any and all amendments (including post-effective amendments) to
this registration statement, with all exhibits thereto, and other documents in
connection therewith, 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 or necessary to be done in and about the premises, as
fully to all intents and purposes as he, she, or it 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 substitute or substitutes, 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 by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/S/ STEPHEN L. GUILLARD President, Chief Executive August 20, 1996
Stephen L. Guillard Officer and Director
(Principal Executive
Officer)
/S/ WILLIAM H. STEPHAN Senior Vice President and August 20, 1996
William H. Stephan Chief Financial Officer
(Principal Financial and
Accounting Officer)
/S/ DOUGLAS KRUPP Director August 20, 1996
Douglas Krupp
/S/ LAURENCE GERBER Director August 20, 1996
Laurence Gerber
Page 9 of 17 pages
<PAGE>
Signature Title Date
/S/ ROBERT T. BARNUM Director August 20,1996
Robert T. Barnum
/S/ DAVID F. BENSON Director August 20, 1996
David F. Benson
/S/ ROBERT M. BRETHOLTZ Director August 20, 1996
Robert M. Bretholtz
- ---------------------- Director
Sally W. Crawford
Page 10 of 17 pages
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequential Page
EXHIBITS DESCRIPTION OF EXHIBIT NUMBER
<S> <C> <C>
4.1 Specimen common stock certificate (incorporated by
reference to Exhibit 4.1 to the Company's registration
statement on Form S-1, No. 333-3096)
5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison as 12
to the legality of the shares of Common Stock being
registered
23.1 Consent of Coopers & Lybrand L.L.P. 15
23.2 Consent of Howard, Wershbale & Co. 16
23.3 Consent of Leverone & Company 17
23.4 Consent of Paul, Weiss, Rifkind, Wharton & Garrison
(included in Exhibit 5.1)
24.1 Power of Attorney (included on the signature page of
this registration statement)
</TABLE>
Page 11 of 17 pages
<PAGE>
Exhibit 5.1
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NY 10019-6064
August 21, 1996
Harborside Healthcare Corporation
470 Atlantic Avenue
Boston, MA 02210
Ladies and Gentlemen:
We are furnishing this opinion at your request in connection
with the registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"),
being filed by Harborside Healthcare Corporation, a Delaware corporation
(the "Company"), with the Securities and Exchange Commission (the
"Commission") on the date hereof, relating to 680,000 shares of common
stock, par value $.01, of the Company (the "Common Stock") to be offered
under the Company's 1996 Long-Term Stock Incentive Plan (the "Option
Plan"), 105,000 shares of Common Stock to be offered under the Company's
1996 Stock Option Plan for Non-Employee Directors (the "Formula Plan")
and 15,000 shares of Common Stock to be offered under the Company's
Directors Retainer Fee Plan (the "Retainer Plan") (collectively, the
"Shares").
In connection with this opinion, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of (i) the
Registration Statement,
Page 12 of 17 pages
<PAGE>
(ii) the Amended and Restated Certificate of Incorporation of the
Company, (iii) the Amended and Restated By-laws of the Company, (iv) the
Option Plan, the Formula Plan and the Retainer Plan (collectively, the
"Plans") and (v) all such corporate records, agreements and other
instruments of the Company, and all such other documents, as we have
considered necessary in order to form a basis for the opinions expressed
herein. As to certain matters of fact, we have relied on
representations, statements or certificates of officers of the Company
and of public authorities.
In our examination of the aforesaid documents, we have assumed,
without independent investigation, 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, photostatic, reproduced or conformed copies of valid existing
agreements or other documents, the authenticity of all of such latter
documents and the legal capacity of all individuals who have executed any
of the aforesaid documents.
Based upon the foregoing, and subject to the assumptions,
exceptions and qualifications stated herein, we are of the opinion that,
when issued in accordance with the terms of the respective Plans, the
Shares will be duly authorized, validly issued, fully paid and
nonassessable.
Our opinion expressed above is limited to the General
Corporation Law of the State of Delaware. Please be advised that no
member of this firm is admitted to practice in the State of Delaware.
Our opinion is rendered only with respect to the laws and the rules,
regulations and orders thereunder, which are currently in effect.
Page 13 of 17 pages
<PAGE>
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement. In giving this consent, we do not thereby
admit that we come within the category of persons whose consent is
required by the Act or the rules promulgated under the Act.
Very truly yours,
/s/ Paul, Weiss, Rifkind, Wharton & Garrison
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
Page 14 of 17 pages
<PAGE>
Exhibit 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated March 19, 1996, on our audits
of the combined financial statements of Harborside Healthcare Corporation
and Combined Affiliates and the financial statements of Bowie Center
Limited Partnership included in the registration statement on Form S-1
(File No. 333-3096) filed with the Securities and Exchange Commission
pursuant to the Securities Act of 1933.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
August 16, 1996
Page 15 of 17 pages
<PAGE>
Exhibit 23.2
Consent of Independent Accountants
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the 1996 Long-Term Stock Incentive
Plan, the 1996 Stock Option Plan for Non-Employee Directors and the
Directors Retainer Fee Plan of Harborside Healthcare Corporation (the
"Company") of our report dated March 15, 1996, on our audits of the
combined financial statements of Beachwood Care Center, Westbay Manor
Company, Westbay Manor II Development Company and Royalview Manor
Development Company Limited Partnership included in the Registration
Statement (Form S-1 No. 333-3096) of the Company which was filed with the
Securities and Exchange Commission and declared effective on June 10,
1996.
/s/ Howard, Wershbale & Co.
HOWARD, WERSHBALE & CO.
Certified Public Accountants
Cleveland, Ohio
August 14, 1996
Page 16 of 17 pages
<PAGE>
Exhibit 23.3
Consent of Independent Accountants
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the 1996 Long-Term Stock Incentive
Plan, the 1996 Stock Option Plan for Non-Employee Directors and the
Directors Retainer Fee Plan of Harborside Healthcare Corporation (the
"Company") of our report dated February 9, 1996, on our audits of the
combined financial statements of Sowerby Enterprises as of and for the
years ended December 31, 1993, 1994 and 1995 included in the Registration
Statement (Form S-1 No. 333-3096) of the Company which was filed with the
Securities and Exchange Commission and declared effective on June 10,
1996.
/s/ Leverone & Company
LEVERONE & COMPANY
Billerica, Massachusetts
August 16, 1996
Page 17 of 17 pages
<PAGE>
