<PAGE> 1
As filed with the Securities and Exchange Commission on September 1, 1995
Registration Statement No. 33--______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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VENCOR, INC.
(Exact name of registrant as specified in charter)
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<S> <C> <C>
DELAWARE 8069 61-1055020
(State or Other Jurisdiction (Primary Standard Industrial Classi- (I.R.S. Employer Identification No.)
of Incorporation or Organization) fication Code Number)
3300 PROVIDIAN CENTER
400 WEST MARKET STREET
LOUISVILLE, KENTUCKY 40202
(Address of Principal Executive Offices)
------------------
JILL L. FORCE Copies to:
General Counsel and Corporate Secretary IVAN M. DIAMOND
Vencor, Inc. Greenebaum Doll & McDonald PLLC
3300 Providian Center 3300 National City Tower
400 West Market Street Louisville, Kentucky 40202
Louisville, Kentucky 40202 (502) 589-4200
(502) 569-7300
(Name, address and telephone number, including
area code, of agent for service)
</TABLE>
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
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==============================================================================================================
Title of Each Class of Proposed Maximum Proposed Maximum Amount of
Securities to be Amount to be Offering Price Per Aggregate Offering Registration
Registered Registered Unit(1) Price(1) Fee
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Common Stock, par value
$.25 per share . . . . . 439,157 $30.25 $13,284,500 $4,581
==============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and is based on the average of the high and
low prices per share as reported on the New York Stock Exchange on
August 29, 1995.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE> 2
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED SEPTEMBER 1, 1995
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
VENCOR, INC.
439,157 SHARES OF
COMMON STOCK
This Prospectus covers a maximum of 439,157 shares of common stock, par
value $.25 per share ("Common Stock") of Vencor, Inc. (the "Company") to be
sold by Fred J. Morgan (the "Selling Stockholder"). The Selling Stockholder may
from time to time sell all or part of the shares covered by this Prospectus at
prices then prevailing in the market or at negotiated prices. See "Plan of
Distribution." Customary brokerage commissions or commissions in an amount to
be negotiated from time to time may be paid by the Selling Stockholder. The
Company will not receive any proceeds from the sales of shares by the Selling
Stockholder.
The Selling Stockholder acquired the shares offered hereby in a private
transaction exempt from registration under the Securities Act of 1933, as
amended ("Securities Act"). See "Identity of Selling Stockholder." Upon any
sale of the shares offered hereby, the Selling Stockholder, brokers executing
sales orders on behalf of the Selling Stockholder and dealers to whom the
shares may be sold, may, under certain circumstances, be considered
"underwriters" within the meaning of Section 2(11) of the Securities Act.
On August 31, 1995, the closing price of a share of Common Stock on the
NYSE -- Composite Transactions was $29.625.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
---------------------
The date of this Prospectus is , 1995
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission located at Judiciary
Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the
Regional Offices of the Commission at 7 World Trade Center, 13th Floor, New
York, New York 10048 and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60601. Copies of such materials may also be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates.
The Common Stock of the Company is listed on the New York Stock Exchange
("NYSE") and reports, proxy statements and other information concerning the
Company can be inspected at the offices of the NYSE, 20 Broad Street, New York,
NY 10005. This Prospectus does not contain all the information set forth in the
Registration Statement and the exhibits and schedules thereto that the Company
has filed with the Commission under the Securities Act, to which reference is
hereby made.
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATIONS
NOT CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS; ANY
INFORMATION OR REPRESENTATION NOT CONTAINED OR INCORPORATED BY REFERENCE
HEREIN MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR
THE SELLING STOCKHOLDER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF ANY OFFER TO BUY ANY OF THE SECURITIES OFFERED
HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
In accordance with the requirements of the Exchange Act, certain reports
and other information are filed by the Company periodically with the
Commission. The following documents filed with the Commission are incorporated
in this Prospectus by reference:
1. The Company's Annual Report on Form 10-K and Form 10-K/A for the year
ended December 31, 1994;
2. The portions of the Company's Proxy Statement for the Annual Meeting
of Stockholders held on May 9, 1995 that have been incorporated by
reference in the Company's 1994 Annual Report on Form 10-K;
3. The Company's Quarterly Report on Form 10-Q and Form 10-Q/A, and Form
10-Q, for the quarters ended March 31, 1995 and June 30, 1995,
respectively;
4. The Company's Current Reports on Form 8-K filed April 24, 1995, May 5,
1995; August 11, 1995 and September 1, 1995;
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5. The following portions of the Company's Prospectus/Proxy Statement
dated August 11, 1995, which are included in a Registration Statement
on Form S-4 (Reg. No. 33-59345) filed with the Commission: (a) "Risk
Factors"; (b) "Operations and Management After the Merger--Post-Merger
Capitalization, Directors After the Merger, Executive Officers After
the Merger, Post-Merger Dividend Policy"; (c) "The Merger--Terms of
the Merger, Employee Benefits, Indemnification and Insurance,
Conditions, Termination, Certain Termination Fees, Accounting
Treatment, Resale of Vencor Capital Stock, Hillhaven Litigation,
Interests of Certain Persons in the Transactions, Proposed Amendments
to Vencor's Certificate of Incorporation"; (d) "Amendment to the
Vencor Certificate of Incorporation"; and (e) "Amendment to Vencor's
1987 Incentive Compensation Program."
6. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission
on January 22, 1992; and
7. The description of the Company's Preferred Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A and Form
8-A/A filed with the Commission on July 21, 1993 and August 11, 1995,
respectively.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date hereof and prior to the termination of
the offering of the Common Stock shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated herein by reference 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, or is deemed to be,
incorporated herein by reference modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed to constitute a
part hereof, except as modified or superseded.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request, a copy (without
exhibits) of any of the documents incorporated by reference herein. Requests
should be directed to Jill L. Force, Secretary, Vencor, Inc., 3300 Providian
Center, 400 West Market Street, Louisville, Kentucky 40202, telephone number
(502) 569-7300.
THE COMPANY
The Company operates a network of healthcare services for patients who
suffer from cardiopulmonary disorders. The foundation of the Company's network
is a nationwide chain of long-term intensive care hospitals. The Company's
hospitals treat medically complex, chronically ill patients who generally are
dependent upon ventilators or other life-support devices. The Company's Vencare
contract services division provides respiratory therapy and subacute services
to lower acuity patients at nursing centers and hospitals owned by third
parties. Through its subsidiary, Ventech Systems, Inc., the Company is
developing ProTouch(TM), a comprehensive paperless clinical information system
designed to increase the operating efficiencies of the Company's hospitals as
well as other healthcare facilities.
Since its inception in 1985, the Company has created what it believes to be
the nation's largest network of long-term intensive care hospitals. As of
August 7, 1995, the Company owned, leased or managed 34 intensive care
hospitals, one general acute care hospital and one long-term hospital unit
located in 17 states with a total of 3,214 licensed beds. As of August 7, 1995,
the Company's Vencare
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<PAGE> 5
division had contracts to provide respiratory care services and supplies to
approximately 1,200 nursing centers and subacute care services to 34 nursing
centers and hospitals located in 34 states.
The Company was incorporated in Kentucky in 1983 and commenced operations
in 1985. It was reorganized as a Delaware corporation in 1987. Its principal
executive offices are located at 3300 Providian Center, Louisville, Kentucky
40202, and its telephone number is (502) 569-7300.
RECENT DEVELOPMENTS
The Company has entered into an agreement with The Hillhaven Corporation, a
Nevada corporation ("Hillhaven"), dated as of April 23, 1995 and amended and
restated as of July 31, 1995 (the "Merger Agreement"), pursuant to which
Hillhaven will merge (the "Merger") into the Company. The Merger is subject to
various conditions, including approval of the stockholders of both companies.
The following summarizes the Merger and sets forth certain other related
information.
TERMS OF THE MERGER
The Company anticipates that under the terms of the Merger, each outstanding
share of Hillhaven common stock, par value $.75 per share ("Hillhaven Common
Stock"), will be converted into a fraction of a share of Common Stock (the
"Conversion Number") determined by dividing $32.25 by the average closing price
on the NYSE of Common Stock (as reported in the NYSE Composite Transactions
reporting system as published in The Wall Street Journal or, if not published
therein, in another authoritative source) for the ten consecutive trading days
ending with the second trading day immediately preceding the time the Merger
becomes effective ("Vencor Average Price"); provided, that the Conversion
Number will not be less than 0.768 nor more than 0.977, except that pursuant to
the Merger Agreement, if the product of the Vencor Average Price times the
Conversion Number is less than $31.00 per share, Hillhaven may terminate the
Merger Agreement unless the Company advises Hillhaven that the Conversion
Number will be determined by dividing $31.00 by the Vencor Average Price
without regard to any maximum imposed on the Conversion Number. In addition,
each outstanding share of Hillhaven's Series C and D preferred stock, each
having a par value of $.15 per share (collectively, "Hillhaven Preferred
Stock") will be converted in the Merger into the right to receive $900 in cash,
plus accrued and unpaid dividends. After the Merger, holders of Hillhaven
Common Stock immediately prior to the Merger will own between approximately 49%
and 55% of the Common Stock of the Company on a primary basis.
The Merger is intended to qualify as a pooling of interests for accounting
purposes and as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended, for federal income tax purposes. The
Merger is subject to a number of conditions, including the receipt of
stockholder approvals. The Company and Hillhaven furnished to their
stockholders a Prospectus/Joint Proxy Statement dated August 11, 1995 (the
"Prospectus/Proxy Statement"), describing the Merger and related transactions,
and covering the Common Stock to be issued in the Merger. The special meetings
for the Company's and Hillhaven's stockholders are both scheduled for September
27, 1995.
At the special meeting of the Company's stockholders, the Company's
stockholders will also consider and vote upon an amendment to the Company's
Certificate of Incorporation to increase the authorized number of shares of
Common Stock from 60,000,000 shares to 180,000,000. In addition, the Company's
stockholders will consider and vote upon an amendment to the Company's 1987
Incentive Compensation Program to increase the number of shares of Common Stock
that may be issued upon the exercise of
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<PAGE> 6
stock options and pursuant to other stock and cash awards granted under the
program from 3,162,562 to 6,900,000 shares. The purpose of this amendment is
to ensure that there is a sufficient number of shares of Common Stock which may
be issued under the program following the Merger.
Detailed descriptions and information concerning the Merger and related
transactions are included in the Prospectus/Proxy Statement, portions of which
are incorporated herein by reference. See "Incorporation of Certain Documents
by Reference" at page 3 of this Prospectus. All statements and descriptions
contained in this Prospectus with respect to the Merger and related
transactions are qualified by the descriptions and information incorporated
herein by reference to the Prospectus/Proxy Statement.
DESCRIPTION OF HILLHAVEN
Hillhaven provides a wide range of diversified healthcare services,
including long-term care and subacute medical and rehabilitation services, such
as physical, occupational and speech therapies, wound care, oncology treatment,
brain injury care, stroke therapy and orthopedic therapy. Subacute medical and
rehabilitation services are offered at all of Hillhaven's nursing centers and
are the fastest growing components of Hillhaven's nursing center operations.
Hillhaven believes that it is also one of the largest providers of physical,
occupational and speech therapy programs in the United States. In addition, as
of August 7, 1995, Hillhaven provided long-term care to residents of
Hillhaven's nursing centers with Alzheimer's disease through 72 Alzheimer's
care units.
As of August 7, 1995, Hillhaven operated 311 nursing centers, 55 retail and
institutional pharmacies and 23 retirement housing communities (including the
operations of Nationwide (as defined below)). Based upon the number of beds in
service and net operating revenues, Hillhaven is the second-largest long-term
care provider in the United States and believes that it is one of the leading
providers of Alzheimer's care. The largest long-term care provider in the
United States operates over 800 nursing centers. Pharmacy operations are
conducted through Hillhaven's wholly owned subsidiary, Medisave Pharmacies,
Inc.
On June 30, 1995, Hillhaven consummated the transactions contemplated by
the Amended and Restated Agreement and Plan of Share Exchange and Agreement to
Assign Partnership Interests, executed on April 14, 1995, but dated as of
February 27, 1995 with Nationwide Care, Inc., an Indiana corporation
("Nationwide"), Phillippe Enterprises, Inc., an Indiana corporation ("PEI"),
and Meadowvale Skilled Nursing Care Center, Inc., an Indiana corporation
("Meadowvale"), and certain Nationwide affiliated partnerships, pursuant to
which the stockholders of Nationwide received an aggregate of 5,000,000 shares
of Hillhaven Common Stock (the "Nationwide Transaction"). The Nationwide
transaction is being accounted for as a pooling of interests.
IDENTITY OF SELLING STOCKHOLDER
The Selling Stockholder is Fred J. Morgan. The Selling Stockholder's
address is 161 Fashion Lane, Suite 216, Tustin, California 92680. Pursuant to
an Agreement for Exchange of Stock dated June 14,
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<PAGE> 7
1995, between the Company and the Selling Stockholder, the Selling Stockholder
acquired 439,157 shares of Common Stock in exchange for all of the issued and
outstanding shares of Common Stock of Healthcare Respiratory Services, Inc.,
Healthcare Respiratory Therapy, Inc., Healthcare Rehabilitation and Respiratory
Supply Group, Inc. (collectively, the "Acquired Companies"). The Selling
Stockholder has held no position or office and has had no other material
relationship with the Company (or any of its predecessors or affiliates) within
the past three years. The Selling Stockholder owned 439,157 shares of Common
Stock prior to this offering, all of which are being offered hereby. After
completion of the offering, the Selling Stockholder will own no shares of
Common Stock.
PLAN OF DISTRIBUTION
The Selling Stockholder may dispose of up to 4,391 shares of Common Stock
offered hereby immediately upon this Registration Statement becoming effective.
The Selling Stockholder may not dispose of any additional shares of Common
Stock until such time as financial results covering at least 30 days of
combined operations of the Company and the Acquired Companies have been
published within the meaning of Section 201.01 of the Commission's Codification
of Financial Reporting Policies. The Company anticipates that these financial
results will be published on or about November 15, 1995.
The Selling Stockholder has advised the Company that sales of the shares
offered hereby will be effected from time to time in transactions (which may
include block transactions) on the NYSE, in the over-the-counter market, in
negotiated transactions or otherwise, at prices then prevailing or at
negotiated prices. The Selling Stockholder may effect such transactions by
selling the shares directly to purchasers or to or through broker-dealers which
may act as agents or principals. Such broker-dealers may receive compensation
in the form of discounts, concessions or commissions from the Selling
Stockholder, from the purchasers of the shares for whom such broker-dealers may
act as agents or to whom they sell as principal, or both. The Selling
Stockholder and any persons who act as broker-dealers in connection with the
sale of the shares offered hereby might be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act and any commission received
by them, and any profit on the resale of the shares as principal may under
certain circumstances be deemed to be underwriting discounts and commissions
under the Securities Act.
The Selling Stockholder may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of the shares
offered hereby against certain liabilities, including liabilities arising under
the Securities Act.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been passed
upon for the Company and the Selling Stockholder by Greenebaum Doll & McDonald
PLLC, Louisville, Kentucky. Mr. William C. Ballard Jr., a director of the
Company, is of counsel to Greenebaum Doll & McDonald PLLC and at August 1, 1995
beneficially owned 26,099 shares of Common Stock. In addition, at August 1,
1995, the attorneys with Greenebaum Doll & McDonald PLLC who participated in
the preparation of this Prospectus beneficially owned approximately 23,200
shares of Common Stock.
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EXPERTS
The consolidated financial statements of Vencor, Inc. appearing in
Vencor's Annual Report (Form 10-K/A) for the year ended December 31, 1994 have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report therein and incorporated herein by reference. Such financial statements
referred to above are incorporated herein by reference in reliance upon such
reports given the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Hillhaven as of May 31, 1995 and
1994 and for each of the years in the three-year period ended May 31, 1995 and
the supplemental consolidated financial statements as of May 31, 1995 and 1994
and for each of the years in the three-year period ended May 31, 1995,
have been incorporated by reference herein and in the Registration Statement in
reliance upon the reports of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein and upon their authority
as experts in accounting and auditing.
The reports of KPMG Peat Marwick LLP covering the May 31, 1995 consolidated
financial statements and supplemental consolidated financial statements refer
to a change in the methodology of providing income taxes by adopting Statement
of Financial Accounting Standards No. 109, "Accounting for Income Taxes."
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an itemized statement of all expenses to be
borne by the Company in its registration of the shares registered hereunder.
The Selling Stockholder will be responsible for any and all underwriting
discounts, selling commissions and similar brokerage charges in connection with
the sale of the shares registered hereunder. All amounts are estimated, except
for the SEC registration fee.
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SEC registration fee $ 4,581
Legal Fees and Expenses 5,000
Accounting Fees and Expenses 11,500
Miscellaneous 919
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Total $22,000
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ITEM 15. 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 a
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 his 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 such
person 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 him against expenses (including attorneys' fees)
actually and reasonably incurred by him 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. The 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.
Pursuant to Section 102(b)(7) of the GCL, the Company's Certificate of
Incorporation, as amended, eliminates certain liability of the Company's
directors for breach of their fiduciary duty of care. Article
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VIII of the Certificate of Incorporation provides that neither the Company nor
its stockholders may recover monetary damages from the Company's directors for
breach of the duty of care in the performance of their duties as directors of
the Company. Article VIII does not, however, eliminate the liability of the
Company's directors (i) for a breach of the director's duty of loyalty, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the GCL (relating to
unlawful distributions), or (iv) for any improper personal benefit.
Pursuant to Article IX of the Company's Certificate of Incorporation, as
amended, the Company provides mandatory indemnification of its directors and
officers to the fullest extent authorized by the GCL against all expenses,
liabilities and losses actually and reasonably incurred or suffered in
connection with any action, suit or proceeding to which such officer or
director is a party, or is threatened to be made a party. Article IX also
provides mandatory indemnification of any person who is made a party, or is
threatened to be made a party, to an action, suit or proceeding because he was
serving at the request of the Company as a director, officer, employee, trustee
or agent of another corporation, partnership, joint venture, trust or other
enterprise. In connection with the foregoing indemnification, the Company is
permitted to advance expenses incurred by directors or officers in defending a
proceeding if authorized by the Board of Directors and if the Company receives
an undertaking by or on behalf of such persons to repay the amounts advanced
unless it is ultimately determined that indemnification is required of the
Company.
The indemnification mandated by Article IX is a contract right which
continues as to persons who cease to be a director or officer of the Company,
their heirs, executors and administrators. No amendment to the Company's
Certificate of Incorporation, as amended, may increase the liability of any
director or officer for their acts or omissions occurring prior to such
amendment. The mandatory indemnification provided by Article IX is expressly
non-exclusive of any other rights to which persons seeking indemnification may
be entitled.
The Company may purchase and maintain insurance on behalf of any person for
whom indemnification is mandated by Article IX or any employee or agent of the
Company, whether or not the Company would have the power or the obligation to
indemnify such person under the Certificate of Incorporation, as amended or the
GCL. The Company currently has in effect an officers and directors liability
insurance policy. The policy covers any negligent act, error or omission of a
director or officer, subject to certain exclusions. The limit of liability
under the policy is $5,000,000 in the aggregate annually for coverage in excess
of deductibles.
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ITEM 16. EXHIBITS.
<TABLE>
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EXHIBIT DESCRIPTION OF DOCUMENT
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4.1 Certificate of Incorporation of the Company, as amended. Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (Reg. No. 33-51372) is hereby incorporated by
reference.
4.2 Certificate of Ownership and Merger (amending the Company's Certificate of Incorporation
in connection with its corporate name change). Exhibit 2.1 to the Company's Current
Report on Form 8-K dated September 10, 1993 (Comm. File No. 1-10989) is hereby incorpo-
rated by reference.
4.3 Amended and Restated Bylaws of the Company. Exhibit 4.2 to the Company's Current Report
on Form 8-K filed on July 21, 1993 (Comm. File No. 1-10989) is hereby incorporated by
reference.
4.4 Specimen Common Stock Certificate. Exhibit 4.1 to the Company's Registration Statement on
Form S-1 (Reg. No. 33-30212) is hereby incorporated by reference.
4.5 Indenture relating to the Company's 6% Convertible Subordinated Notes Due 2002 (including
form of Note). Exhibit 4(a) to the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1992 (Comm. File No. 1-10989) is hereby incorporated by
reference.
4.6 Article IV of the Certificate of Incorporation of the Company, as amended, is included in
Exhibit 4.1.
4.7 Rights Agreement dated as of July 20, 1993, as amended on August 11, 1995, between the
Company and National City Bank. Exhibit 4.1 to the Company's Current Report on Form 8-K
filed on July 21, 1993 and Exhibit 4.3(a) to the Company's Current Report on Form 8-K
filed on August 11, 1995 (Comm. File No. 1-10989) are hereby incorporated by reference.
4.8 Fourth Amended and Restated Loan Agreement dated as of January 20, 1995 by and between
National City Bank, Kentucky, NBD Bank, PNC Bank, Kentucky, Inc., Bank One Columbus,
N.A., Nationsbank of Georgia, First Union National Bank of North Carolina, Mellon Bank,
N.A., Wachovia Bank of Georgia, N.A., and the Company. Exhibit 4.4 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1994 (Comm. File No. 1-10989)
is hereby incorporated by reference.
4.9 Other Debt Instruments -- Copies of debt instruments for which the related debt is less
than 10% of total assets will be furnished to the Commission upon request.
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION OF DOCUMENT
<S> <C>
5 Opinion and Consent of Greenebaum Doll & McDonald PLLC as to the legality of the shares
being registered.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Greenebaum Doll & McDonald PLLC (included in Exhibit 5)
23.3 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included on the signature page of the Registration Statement).
</TABLE>
ITEM 17. UNDERTAKINGS.
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 the aggregate, represent a
fundamental change in the information set forth in the registration statement;
and
(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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic 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.
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 Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
II-4
<PAGE> 13
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 Securities Act and
is, therefore, unenforceable. In the 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 Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus 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.
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<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company 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 September 1, 1995.
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, Jill L.
Force and June N. King, 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, 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 by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ W. Bruce Lunsford Chairman of the Board, President, Chief Executive September 1, 1995
------------------------------ Officer (Principal Executive Officer) and Director
W. Bruce Lunsford
/s/ R. Gene Smith Vice Chairman of the Board and Director September 1, 1995
------------------------------
R. Gene Smith
/s/ Michael R. Barr Vice President, Operations and Director September 1, 1995
------------------------------
Michael R. Barr
/s/ W. Earl Reed, III Vice President, Finance and Development (Principal September 1, 1995
------------------------------ Financial and Accounting Officer) and Director
W. Earl Reed, III
</TABLE>
II-6
<PAGE> 15
<TABLE>
<S> <C> <C>
/s/ William H. Lomicka Director September 1, 1995
------------------------------
William H. Lomicka
/s/ William C. Ballard Jr. Director September 1, 1995
------------------------------
William C. Ballard Jr.
/s/ Greg D. Hudson Director September 1, 1995
------------------------------
Greg D. Hudson
/s/ Donna R. Ecton Director September 1, 1995
-----------------------------
Donna R. Ecton
</TABLE>
II-7
<PAGE> 16
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS DESCRIPTION PAGE
-------------------------------------------------------------------------------------------------------------------------
<S> <C>
5 Opinion and Consent of Greenebaum Doll & McDonald PLLC as to the legality of the shares being
registered.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Greenebaum Doll & McDonald PLLC (included in Exhibit 5)
23.3 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included on the signature page of the Registration Statement)
</TABLE>
II-8
<PAGE> 1
EXHIBIT 5
September 1, 1995
VENCOR, INC.
3300 Providian Center
400 West Market Street
Louisville, Kentucky 40202
Ladies and Gentlemen:
We have acted as legal counsel to Vencor, Inc. (the "Company") in
connection with the preparation of a Registration Statement on Form S-3 under
the Securities Act of 1933, as amended ("Registration Statement"), relating to
439,157 shares of the Company's common stock, par value $.25 per share
("Shares"), and a like number of related Preferred Stock Purchase Rights (the
"Rights") issued with the Shares, to be sold by a certain "Selling
Stockholder."
We have examined and are familiar with the Certificate of
Incorporation, as amended, and Restated By-Laws of the Company, and the various
corporate records and proceedings relating to the organization of the Company
and the filing of the Registration Statement. We have also examined such other
documents and proceedings as we have considered necessary for the purpose of
this opinion.
Based on the foregoing, it is our opinion that (i) the Shares have
been validly issued and are fully paid and non-assessable and (ii) the Rights
constitute valid, binding and legal obligations of the Company (except as such
validity may be limited by bankruptcy, insolvency, moratorium, or other similar
laws presently or hereafter in effect, affecting the enforcement of creditors'
rights generally, and by general and equitable principles which may restrict
the availability or enforceability of rights or remedies, as to which we
express no opinion).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and with such state securities administrators as may
require such opinion of counsel for the registration of the Shares and the
Rights, and to the reference to this firm under the heading "Legal Matters" in
the Prospectus.
Very truly yours,
GREENEBAUM DOLL & McDONALD PLLC
TSB/abc
<PAGE> 1
EXHIBIT 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Vencor, Inc. for
the registration of 439,157 shares of its common stock and to the incorporation
by reference therein of our report dated January 30, 1995 with respect to the
consolidated financial statements of Vencor, Inc. included in its Annual Report
(Form 10-K/A) for the year ended December 31, 1994, filed with the Securities
and Exchange Commission.
Louisville, Kentucky
August 29, 1995
<PAGE> 1
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
The Hillhaven Corporation:
We consent to incorporation by reference in the registration statement on Form
S-3 of Vencor, Inc. of our report dated July 7, 1995 relating to the
consolidated balance sheets of The Hillhaven Corporation and subsidiaries as of
May 31, 1995 and 1994, and the related consolidated statements of income,
cash flows, and stockholders' equity for each of the years in the three-year
period ended May 31, 1995 and our report dated July 14, 1995 relating to the
supplemental consolidated balance sheets of The Hillhaven Corporation and
subsidiaries as of May 31, 1995 and 1994, and the related supplemental
consolidated statements of income, cash flows and stockholders' equity for each
of the years in the three-year period ended May 31, 1995, which reports appear
in the Form 8-K of Vencor, Inc. dated September 1, 1995 and to the reference to
our firm under the heading "Experts" in the Prospectus.
Our reports refer to a change in the method of accounting for income taxes
effective June 1, 1992.
Seattle, Washington
August 31, 1995
