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As filed with the Securities and Exchange Commission on August 13, 1998
Registration Statement No. 333-__
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VENCOR, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 61-1323993
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
3300 AEGON CENTER
400 WEST MARKET STREET
LOUISVILLE, KENTUCKY 40202
(Address of Principal Executive Offices)
THERATX RETIREMENT SAVINGS PLAN
(Full title of the plan)
JILL L. FORCE
Senior Vice President, General Counsel
and Assistant Secretary
Vencor, Inc.
3300 Aegon Center
400 West Market Street
Louisville, Kentucky 40202
(Name and address of agent for service)
(502) 596-7300
(Telephone number, including area code,
of agent for service)
________
CALCULATION OF REGISTRATION FEE
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<CAPTION>
=====================================================================================================
<S> <C> <C> <C> <C>
Proposed Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered price per share(1) price(1) registration fee
======================= ============== ================ ================== ================
Common Stock, par 940,000 shares $4.09375 $3,848,125 $1,135.20
value $0.25 per share
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee. This
estimate has been calculated in accordance with Rule 457(h) of the
Securities Act of 1933, as amended, and is based on the average of the high
and low prices per share as reported on the New York Stock Exchange on
August 10, 1998.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the TheraTx Retirement Savings
Plan described herein.
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PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
- ------ ----------------------------------------
The following documents filed by Vencor, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") (Comm. File No. 001-14057)
are incorporated into this Registration Statement by reference:
(a) The Company's Form 10, as amended, dated April 27, 1998.
(b) The Company's Current Report on Form 8-K dated April 30, 1998.
(c) The Company's Current Report on Form 8-K dated June 18, 1998.
(d) The Company's Current Report on Form 8-K dated July 15, 1998.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered 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 a part hereof from the filing date of such documents. Any statement contained
in a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
(or in any other subsequently filed document which also is incorporated by
reference herein) modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed to constitute a part hereof except as
so modified or superseded.
Item 4. DESCRIPTION OF SECURITIES.
- ------- --------------------------
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
- ------- ---------------------------------------
Jill L. Force is Senior Vice President, General Counsel and Assistant
Secretary of the Company. Jill L. Force beneficially owns approximately 123,587
shares of the Company's common stock, par value $.25 per share and 50,973 shares
of the Company's 6% Series A Non-Voting Convertible Preferred Stock. Ms. Force
is rendering the opinion as to the validity of the securities being registered
hereunder.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
- ------- ------------------------------------------
Section 145 of the Delaware General Corporation Law ("GCL") permits a
Delaware corporation to indemnify any person who was or is, 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 such corporation) by reason of the fact that
such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other
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enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided that
such person acted in good faith and in the manner such person reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, such person had no reasonable
cause to believe the person's conduct was unlawful. A Delaware corporation may
indemnify such persons in actions brought by or in the right of the corporation
to procure a judgment in its favor under the same conditions except that no
indemnification is permitted in respect of any claim, issue or matter as to
which such person has been adjudged to be liable to the corporation unless and
to the extent the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought determines upon application that, in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the Court of Chancery or other such
court deems proper. To the extent that a present or former director or officer
has been successful on the merits or otherwise in defense of any action referred
to above, or in defense of any claim, issue or matter therein, the corporation
must indemnify such person against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection therewith. Corporations,
under certain circumstances, may pay expenses incurred by an officer or director
in advance of the final disposition of an action for which indemnification may
be permitted or required. Indemnification and advancement of expenses provided
for or granted pursuant to Section 145 are not exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise. Section 145 further provides that a corporation may maintain
insurance against liabilities for which indemnification is not expressly
provided by statute.
The Company's Restated Certificate of Incorporation provides that each
person who is or was or has agreed to become a director or officer of the
Company, or each such person who is or was serving or has agreed to serve at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, will be
indemnified by the Company, in accordance with the Company's Restated By-laws,
to the fullest extent permitted from time to time by the GCL, as the same exists
or may hereafter be amended or any other applicable laws as presently or
hereinafter in effect. The Company may be required to indemnify any person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Company's Board of Directors or is proceeding to enforce such
person's claim to indemnification pursuant to the rights granted by the
Company's Restated Certificate of Incorporation or otherwise by the Company. In
addition, the Company may enter into one or more agreements with any person
providing for indemnification greater than or different from that provided in
the Company's Restated Certificate of Incorporation.
The Company's Restated By-laws provide that each person who was or is
made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she or a person of whom he or
she is the legal representative is or was a director, officer, or employee of
the Company or any such person who is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefits plans, whether the basis of such Proceeding is
alleged action in an official capacity as a director, officer or employee, or in
any other capacity while serving as a director, officer or employee, will be
indemnified and held harmless by the Company to the fullest extent authorized by
the GCL as the same exists or may in the future be amended against all expenses,
liability and loss (including attorneys' fees, judgments, fines, excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith.
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Pursuant to the Company's Restated By-laws , if a claim is not paid in
full by the Company after a written claim has been received by the Company, the
Claimant may bring suit against the Company to recover the unpaid amount of the
claim and, if successful in whole or in part, the Claimant will also be entitled
to be paid the expense of prosecuting such claim.
The Company's Restated By-laws provide that the right to
indemnification and the payment of expenses incurred in defending a Proceeding
in advance of its final disposition conferred in the Company's By-laws will not
be exclusive of any other right which any person may have or may in the future
acquire under any statute, provision of the Company's Restated Certificate of
Incorporation, the Company's Restated By-laws, agreement, vote of stockholders
or disinterested directors or otherwise. The Company currently has in effect
officers and directors liability insurance policies. These policies cover any
negligent act, error or omission of a director or officer, subject to certain
exclusions. The limit of liability under these policies is $40 million in the
aggregate annually for coverages in excess of deductibles.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
- ------- ------------------------------------
Not Applicable.
ITEM 8. EXHIBITS.
- ------- ---------
The following exhibits are filed as part of this Registration
Statement:
4.1 Restated Certificate of Incorporation of the Company. Exhibit
3.1 to the Company's Form 10, as amended, dated April 27, 1998
(Comm. File No. 001-14057) is hereby incorporated by reference.
4.2 Amended and Restated Bylaws of the Company. Exhibit 3.2 to the
Company's Form 10, as amended, dated April 27, 1998 (Comm. File
No. 001-14057) is hereby incorporated by reference.
5.1 Opinion of Jill L. Force.
23.1 Consent of Ernst & Young, LLP.
23.2 Consent of Jill L. Force (included in Exhibit 5).
24.0 Power of Attorney (Included on signature page of Registration
Statement on Form S-8).
In reference to Exhibit 5.1, the Company undertakes that it will
submit the TheraTx Retirement Savings Plan to the Internal Revenue Service (the
"IRS") in order to qualify the Plan under Section 401 of the Internal Revenue
Code, as amended, and will make all changes required by the IRS in order to
qualify the Plan.
4
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ITEM 9. UNDERTAKINGS.
- ------- -------------
(a) The undersigned Company 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 aggregate,
represent a fundamental change in the information set
forth in the 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) of
this Item 9 do not apply if the information required to be
included in the post-effective amendment by those paragraphs is
contained in periodic reports filed by the Company pursuant to
Section 13(a) 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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of Company's annual report pursuant to Section 13(a) or
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 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a director, officer
or controlling person of Company 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, Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of
5
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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.
6
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Louisville, Commonwealth of Kentucky, on August 13,
1998.
VENCOR, INC.
By: /s/ W. Bruce Lunsford
---------------------
W. Bruce Lunsford
Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE APPEARS
BELOW CONSTITUTES AND APPOINTS W. BRUCE LUNSFORD, W. EARL REED, III AND JILL L.
FORCE, AND EACH OF THEM WITH FULL POWER TO ACT WITHOUT THE OTHER, HIS OR HER
TRUE AND LAWFUL ATTORNEY-IN-FACT AND AGENT, WITH FULL POWER OF SUBSTITUTION AND
RESUBSTITUTION, FOR HIM OR HER AND IN HIS OR HER NAME, PLACE AND STEAD, IN ANY
AND ALL CAPACITIES, TO SIGN ANY AND ALL AMENDMENTS OR 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 AND ANY STATE OR OTHER REGULATORY AUTHORITY, 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 OR SHE MIGHT
OR COULD DO IN PERSON, HEREBY RATIFYING AND CONFIRMING ALL THAT EACH SUCH
ATTORNEY-IN-FACT AND AGENT, OR HIS OR HER 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 in their
capacities and on the date indicated.
Name and Signature Title Date
/s/ Ulysses L. Bridgeman, Jr. Director August 13, 1998
- -----------------------------
Ulysses L. Bridgeman, Jr.
/s/ Elaine L. Chao Director August 13, 1998
- -----------------------------
Elaine L. Chao
/s/ Stanley C. Gault Director August 13, 1998
- -----------------------------
Stanley C. Gault
7
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/s/ Donna R. Ecton Director August 13, 1998
- -----------------------------
Donna R. Ecton
/s/ Richard A. Lechleiter Vice President, Finance August 13, 1998
- ----------------------------- and Corporate Controller
Richard A. Lechleiter (Principal Accounting
Officer)
/s/ William H. Lomicka Director August 13, 1998
- -----------------------------
William H. Lomicka
/s/ W. Bruce Lunsford Chairman of the Board, August 13, 1998
- ----------------------------- President, Chief
W. Bruce Lunsford Executive Officer
(Principal Executive
Officer) and Director
/s/ R. Gene Smith Vice Chairman of the August 13, 1998
- ----------------------------- Board and Director
R. Gene Smith
Pursuant to the requirements of the Securities Act of 1933, as amended, the
persons charged with administering the Plan have duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized, in the City of Louisville, Commonwealth of Kentucky, on August 13,
1998.
THERATX RETIREMENT SAVINGS PLAN
BY: /s/ Cecelia A. Hagan
-----------------------------------
Cecelia A. Hagan
Chairperson of the Retirement
Committee
8
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Exhibit 5.1
August 13, 1998
Securities and Exchange Commission
Division of Corporation Finance
450 Fifth Street, N.W.
Judiciary Plaza
Washington, DC 20549
RE: TheraTx Retirement Savings Plan
-------------------------------
Ladies and Gentlemen:
I am general counsel of Vencor, Inc. and have reviewed the Registration
Statement on Form S-8 ("Registration Statement") under the Securities Act of
1933, as amended, covering an aggregate of 940,000 shares of Common Stock, par
value $.25 per share (the "Shares") of Vencor, Inc., a Delaware corporation (the
"Company"), to be issued pursuant to the TheraTx Retirement Savings Plan (the
"Plan").
I have examined and am familiar with the Restated Certificate of
Incorporation and the Restated By-laws of the Company, and the various corporate
records and proceedings relating to the proposed issuance of the Shares. I have
also examined such other documents and proceedings as I have considered
necessary for the purpose of this opinion.
Based on the foregoing, it is my opinion that the Shares have been duly
authorized and, when issued and paid for in accordance with the terms of the
Registration Statement and the Plan, will be validly issued, fully paid and
nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Jill L. Force
Jill L. Force
Senior Vice President, General Counsel
and Assistant Secretary
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the TheraTx Retirement Savings Plan of our report dated
January 26, 1998, with respect to the consolidated financial statements and
schedule of Vencor, Inc., incorporated by reference in the Form 10 of Vencor,
Inc. (Comm. File No. 001-14057) filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Louisville, Kentucky
August 12, 1998
