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As filed with the Securities and Exchange Commission on February 7, 1997.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NEW GRANCARE, INC.
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(Exact Name of Registrant as Specified in its Charter)
DELAWARE 95-4336136
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
ONE RAVINIA DRIVE, SUITE 1500, ATLANTA, GEORGIA 30346
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(Address of Principal Executive Offices) (Zip Code)
NEW GRANCARE, INC. OUTSIDE DIRECTORS STOCK INCENTIVE PLAN
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(Full Title of the Plan)
EVRETT W. BENTON, ESQ.
NEW GRANCARE, INC.
ONE RAVINIA DRIVE, SUITE 1500
ATLANTA, GEORGIA 30346
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(Name and Address of Agent for Service)
(770) 393-0199
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(Telephone Number, Including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered(1) Share(2) Price(2) Fee(2)
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Common Stock, 250,000 $5.75 $1,437,500 $436
$.001 par value Shares
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(1) Representing shares of the Registrant's Common Stock, par value $.001 per
share (the "Common Stock"), to be issued by the Registrant in connection
with awards made under the Registrant's Outside Directors Stock Incentive
Plan (the "Plan") or upon the exercise of stock options granted
thereunder. This Registration Statement also covers such indeterminable
number of additional shares as may become issuable to prevent dilution in
the event of stock splits, stock dividends or similar transactions
pursuant to the terms of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) of the Securities Act of 1933, as amended (the
"Securities Act"), and based upon the book value of the Common Stock as of
December 31, 1996.
-2-
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
General Instructions to the Registration Statement on Form S-8 will be sent or
given to employees of the Registrant selected to participate in the Plan as
required by Rule 428(b)(1) promulgated under the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(1) The Registrant's Registration Statement on Form S-1 filed on
December 31, 1996 (File No. 333-19091), as amended by Amendment No. 1
thereto filed on January 8, 1997.
(2) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A/A pursuant to
Section 12 of the Securities Exchange Act of 1934 as amended (the
"Exchange Act"), filed on January 30, 1997 (File No. 001-12621).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment indicating that all securities offered hereby have been sold
or that deregisters all such securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Registrant's Amended and Restated Certificate of
Incorporation eliminates the liability of directors to the fullest extent
permissible under Delaware law, as such law exists currently or as it may be
amended in the future. Under Delaware law, such a provision may not eliminate
or limit director monetary liability for (i) breaches of a director's duty of
loyalty to the corporation or its stockholders; (ii) acts or omissions not in
good faith or involving intentional misconduct or knowing violations of law;
(iii) the payment of unlawful dividends or unlawful stock repurchases or
redemptions; or (iv) transactions in which a director receives an improper
personal benefit. Such a limitation of liability provision also may not limit a
director's liability for violations of, or otherwise relieve the Registrant or
its directors from the necessity of complying with, federal or state securities
laws or affect the availability of non-monetary remedies such as injunctive
relief or rescission.
Delaware law generally permits indemnification of expenses (including
attorneys' fees) incurred in the defense or settlement of a derivative or third-
party action, provided there is a determination by a majority vote of the
disinterested directors (even though less than a quorum), by independent legal
counsel or by stockholders that the person seeking indemnification acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation. Without court approval, however, no
indemnification may be made in respect of any derivative action in which such
person is adjudged liable for negligence or misconduct in the performance of his
or her duty to the corporation. Delaware law also requires indemnification of
expenses when the individual being indemnified has successfully defended an
action, on the merits or otherwise.
Delaware law permits indemnification agreements between a company and its
officers and directors. The Registrant does not have any such indemnification
agreements in place, but may enter into them in the future. Article V of the
Registrant's Amended and Restated Certificate of Incorporation provides for
mandatory indemnification of directors and officers to the fullest extent
permitted by law.
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ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K.
Exhibit
Number Description
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4.1 Amended and Restated Certificate of Incorporation (filed as
Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1 filed on December 31, 1996 (File No. 333-19091), as
amended by Amendment No. 1 thereto filed on January 8, 1997,
incorporated herein by reference).
4.2 Bylaws (filed as Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1 filed on December 31, 1996 (File
No. 333-19091), as amended by Amendment No. 1 thereto filed on
January 8, 1997, incorporated herein by reference).
4.3 Form of Common Stock Certificate of the Registrant (filed as
Exhibit 4.1 to the Registrant's Registration Statement on
Form S-1 filed on December 31, 1996 (File No. 333-19091), as
amended by Amendment No. 1 thereto filed on January 8, 1997,
incorporated herein by reference).
5 Opinion of Powell, Goldstein, Frazer & Murphy LLP.
10 Form of New GranCare, Inc. Outside Directors Stock Incentive
Plan (filed as Exhibit 10.22 to the Registrant's Registration
Statement on Form S-1 filed on December 31, 1996 (File
No. 333-19091), as amended by Amendment No. 1 thereto filed on
January 8, 1997, incorporated herein by reference).
23.1 Consent of Powell, Goldstein, Frazer & Murphy LLP (included in
Exhibit 5).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of KPMG Peat Marwick LLP, Independent Auditors.
24 Power of Attorney (see signature pages to this Registration
Statement).
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;
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(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 and 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% 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 Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such indemnification is against
public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
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Pursuant to the requirements of the Securities Act, 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 Atlanta, Georgia, on the 7th day of February, 1997.
NEW GRANCARE, INC.
By: /s/ M. Scott Athans
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M. Scott Athans
President and Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Evrett W. Benton and Jerry A. Schneider, and
either of them, as 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 documents in connection therewith, with the
Securities and Exchange Commission, 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 might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities
indicated on the date indicated.
Signature Title Date
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/s/ M. Scott Athans Chairman of the Board, February 7, 1997
- ------------------- President, Chief Executive
M. Scott Athans Officer and Director
(Principal Executive Officer)
/s/ Jerry. A. Schneider Executive Vice President, February 7, 1997
- ----------------------- Chief Financial Officer
Jerry A. Schneider (Principal Financial
and Accounting Officer)
and Director
/s/ Evrett W. Benton Director February 7, 1997
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Evrett W. Benton
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EXHIBIT INDEX
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Exhibit
Number Description
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4.1 Amended and Restated Certificate of Incorporation (filed as
Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1 filed on December 31, 1996 (File No. 333-19091), as
amended by Amendment No. 1 thereto filed on January 8, 1997,
incorporated herein by reference).
4.2 Bylaws (filed as Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1 filed on December 31, 1996 (File
No. 333-19091), as amended by Amendment No. 1 thereto filed on
January 8, 1997, incorporated herein by reference).
4.3 Form of Common Stock Certificate of the Registrant (filed as
Exhibit 4.1 to the Registrant's Registration Statement on
Form S-1 filed on December 31, 1996 (File No. 333-19091), as
amended by Amendment No. 1 thereto filed on January 8, 1997,
incorporated herein by reference).
5 Opinion of Powell, Goldstein, Frazer & Murphy LLP.
10 Form of New GranCare, Inc. Outside Directors Stock Incentive Plan
(filed as Exhibit 10.22 to the Registrant's Registration
Statement on Form S-1 filed on December 31, 1996 (File
No. 333-19091), as amended by Amendment No. 1 thereto filed on
January 8, 1997, incorporated herein by reference).
23.1 Consent of Powell, Goldstein, Frazer & Murphy LLP (included in
Exhibit 5).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of KPMG Peat Marwick LLP, Independent Auditors.
24 Power of Attorney (see signature pages to this Registration
Statement).
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Exhibit 5
February 7, 1997
New GranCare, Inc.
One Ravinia Drive, Suite 1500
Atlanta, Georgia 30346
Re: Registration Statement on Form S-8 for New GranCare, Inc.
Outside Directors Stock Incentive Plan
Ladies and Gentlemen:
We have served as counsel for New GranCare, Inc., a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act of
1933, as amended, pursuant to a Registration Statement on Form S-8 (the
"Registration Statement") of an aggregate of 250,000 shares (the "Shares") of
common stock, par value $.001 per share, of the Company, to be offered and sold
by the Company pursuant to the New GranCare, Inc. Outside Directors Stock
Incentive Plan (the "Plan").
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and the adoption of the Plan as we have deemed necessary and advisable.
In all such examinations, we have assumed the genuineness of all signatures
on all originals and copies of documents we have examined, the authenticity of
all documents submitted to us as originals and the conformity to original
documents of all certified, conformed or photostatic copies. As to questions of
fact material and relevant to our opinion, we have relied upon certificates or
representations of Company officials and of appropriate state, local and federal
officials.
Based upon and subject to the foregoing and having regard for such legal
considerations as we have deemed relevant, it is our opinion that:
1. The Shares have been duly authorized; and
2. Upon the issuance and delivery of the Shares upon receipt of lawful
consideration therefor pursuant to the Plan, such Shares will be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
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Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8 dated February 7, 1997) pertaining to the New GranCare, Inc. Outside
Directors Stock Incentive Plan of our reports (a) dated February 27, 1996, with
respect to the consolidated financial statements of GranCare, Inc. as of
December 31, 1995 and 1994 and for each of the three years ended December 31,
1995, and (b) dated October 7, 1996, with respect to the balance sheet of New
GranCare, Inc. as of September 30, 1996, included in the New GranCare, Inc.
Registration Statement on Form S-1 filed on December 31, 1996 (No. 333-19091),
as amended by Amendment No. 1 thereto filed on January 8, 1997, with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
February 5, 1997
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Exhibit 23.3
CONSENT OF KPMG PEAT MARWICK LLP, INDEPENDENT AUDITORS
The Board of Directors
Evergreen Healthcare, Inc.:
We consent to the incorporation by reference in this registration statement on
Form S-8 of New GranCare, Inc., of our report dated August 17, 1995, with
respect to the consolidated balance sheet of Evergreen Healthcare, Inc. and
subsidiaries as of December 31, 1994 and the related consolidated statements of
operations, stockholders' equity and cash flows for the year ended December 31,
1994 and the six-month period ended December 31, 1993, and the related combined
statements of operations, partners' equity and cash flows of Evergreen
Healthcare LTD., L.P., predecessor to Evergreen Healthcare, Inc., for the six-
month period ended June 30, 1993, which report appears in the Form S-1 of New
GranCare, Inc. dated December 31, 1996 as amended by Amendment No. 1 thereto
dated January 8, 1997.
KPMG PEAT MARWICK LLP
Indianapolis, Indiana
February 7, 1997
