As filed with the Securities and Exchange Commission on April 29, 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 HEALTHCARE, INC.
(which will change its name to Vencor, Inc. immediately prior to the
distribution referred to herein)
(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)
400 WEST MARKET STREET
LOUISVILLE, KENTUCKY 40202
(Address of Principal Executive Offices)
VENCOR HEALTHCARE, INC. 1998 INCENTIVE COMPENSATION PLAN
(Full title of the plan)
JILL L. FORCE
Senior Vice President, General Counsel
and Assistant Secretary
Vencor, Inc.
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)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
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
---------------- ---------- ------------------ -------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par 11,645,309 shares $13.29 $154,766,157.00 $45,656.00
value $0.25 per
share
<FN>
(1) Pursuant to Rule 457(h)(1) of the Securities Act of 1933, as amended, the
proposed maximum offering price per share, the proposed maximum aggregate
offering price and the amount of the registration fee have been computed on the
basis of book value per share.
</FN>
</TABLE>
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following document filed by Vencor Healthcare, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") is hereby
incorporated by reference into this Registration Statement:
The Registration Statement on Form 10, as amended, filed by the
Registrant pursuant to the Securities Exchange Act of 1934 (the "Exchange Act")
(File No. 001-14057).
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 will own beneficially approximately
83,392 shares of the Company's common stock, par value $.25 per share, after the
distribution of Company Common Stock by Vencor, Inc., a Delaware corporation
("Vencor") and parent of the Company, to stockholders of Vencor expected to
occur on or about May 1, 1998, based on her share ownership of Vencor, Inc.
common stock on April 29, 1998.
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 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
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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, in the form that
will be in effect as of April 30, 1998 and is filed as Exhibit 3.1 to this
Registration Statement, will provide 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 in the form that will be in
effect on April 30, 1998 and is filed as Exhibit 3.2 to this Registration
Statement, 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 hereafter 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 a 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 will 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, criminal, 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 benefit 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 expense,
liability and loss (including attorneys' fees, judgments, fines, excise taxes or
penalties and amounts paid or to be paid in settlement)
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reasonably incurred or suffered by such person in connection therewith;
provided, however, except as described in the next paragraph with respect to
Proceedings to enforce rights to indemnification, the Company will indemnify any
such 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.
Pursuant to the Company's Restated By-laws, if a claim is not paid in
full by the Company within 30 days after a written claim has been received by
the Company, the claimant may at any time thereafter 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 will provide that it will
be a defense to any such action (other than an action brought to enforce a claim
for expenses) incurred in defending any Proceeding in advance of its final
disposition where the required makes it permissible under the GCL for the
Company to indemnify the claimant for the amount claimed, but the burden of
providing such defense will be on the Company.
The Company's Restated By-laws will provide that the right to
indemnification conferred therein is a contract right and includes the right to
be paid by the Company the expenses incurred in defending any Proceeding in
advance of its final disposition, subject to certain exceptions and conditions.
The Company's Restated By-laws will 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 the 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:
3.1 Form of Restated Certificate of Incorporation of the Company.
Exhibit 3.1 to the Company's Registration Statement on Form 10
(Comm. File No. 001-14057) is hereby incorporated by
reference.
3.2 Form of Restated Bylaws of the Company. Exhibit 3.2 to the
Company's Registration Statement on Form 10 (Comm. File No.
001-14057) is hereby incorporated by reference.
5.1 Opinion of Jill L. Force.
23.1 Consent of Ernst & Young L.L.P.
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23.2 Consent of Jill L. Force (included in Exhibit 5.1).
24.0 Power of Attorney (Included on signature page of Registration
Statement on Form S-8).
ITEM 9. UNDERTAKINGS.
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 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 period reports filed by the Company
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.
(4) The undersigned Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the 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.
(5) 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
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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 any event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the
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, the Company 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.
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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 April 29,
1998.
VENCOR HEALTHCARE, INC.
By: /s/ W. BRUCE LUNSFORD
-----------------------------
W. Bruce Lunsford
Chairman of the Board,
President and Chief Executive
Officer
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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 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.
<TABLE>
<CAPTION>
Name and Signature Title Date
<S> <C> <C>
/s/ MICHARL R. BARR
- ------------------------------------- Chief Operating Officer, Executive April 29, 1998
Michael R. Barr Vice-President and Director
/s/ W. BRUCE LUNSFORD
- ------------------------------------- Chairman of the Board, President, April 29, 1998
W. Bruce Lunsford Chief Executive Office (Principal
Executive Officer) and Director
/s/ RICHARD A. LECHLEITER
- ------------------------------------- Vice President, Finance and Corporate April 29, 1998
Richard A. Lechleiter Controller (Principal Accounting
Officer)
/s/ W. EARL REED, III
- ------------------------------------- Executive Vice President, Chief April 29, 1998
W. Earl Reed, III Financial Officer (Principal Financial
Officer) and Director
</TABLE>
Exhibit 5.1
April 29, 1998
Securities and Exchange Commission
Division of Corporation Finance
450 Fifth Street, N.W.
Judiciary Plaza
Washington, DC 20549
RE: Vencor Healthcare, Inc. 1998 Incentive Compensation Plan
Ladies and Gentlemen:
I am the general counsel of Vencor Healthcare, 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 11,645,309 shares of
Common Stock, par value $.25 per share (the "Shares") of Vencor Healthcare,
Inc., a Delaware corporation (the "Company"), to be issued pursuant to the
Vencor Healthcare, Inc. 1998 Incentive Compensation Plan (the "Plan").
I have examined and am familiar with the Restated Certificate of
Incorporation, as amended, and the Amended and 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
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Vencor Healthcare, Inc. 1998 Incentive Compensation 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 Healthcare, Inc. (Comm. File No. 001-14057) filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
Louisville, Kentucky
April 28, 1998
