<PAGE> 1
As filed with the Securities and Exchange Commission on September 1, 1995
Registration Statement No. 33-71910
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
----------
VENCOR, INC.
(Exact name of registrant as specified in charter)
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DELAWARE 8069 61-1055020
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Organization) Classification Code Number) Identification No.)
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3300 PROVIDIAN CENTER
400 WEST MARKET STREET
LOUISVILLE, KENTUCKY 40202
(Address of Principal Executive Offices)
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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
(Name and address of agent for service)
(502) 569-7300
(Telephone number, including area code,
of agent for service)
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If 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, please check the following box. [X]
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A)
MAY DETERMINE.
================================================================================
<PAGE> 2
VENCOR, INC.
CROSS REFERENCE SHEET
BETWEEN ITEMS IN PART I OF THE REGISTRATION STATEMENT
(FORM S-4) AND PROSPECTUS PURSUANT TO RULE 501(b)
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ITEM IN FORM S-4 LOCATION IN PROSPECTUS
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1. Forepart of Registration Statement and Outside Front Cover Page
Outside Front Cover Page of
Prospectus
2. Inside Front and Outside Back Cover Pages Inside Front and Outside Back Cover Pages;
of Prospectus Available Information; Incorporation of Certain
Documents by Reference
3. Risk Factors, Ratio of Earnings to Fixed Inside Front Cover Page; The Company; Recent
Charges and Other Information Developments; Selected Consolidated Financial
Data; Available Information; Incorporation of
Certain Documents by Reference
4. Terms of the Transaction *
5. Pro Forma Financial Information Recent Developments; Incorporation of Certain
Documents by Reference
6. Material Contracts with the Company Being *
Acquired
7. Additional Information Required for *
Reoffering by Persons and Parties Deemed
to be Underwriters
8. Interests of Named Experts and Experts; Legal Opinions
Counsel
9. Disclosure of Commission Position on **
Indemnification for Securities Act
Liabilities
10. Information with Respect to S-3 The Company; Incorporation of Certain Documents
Registrants by Reference
11. Incorporation of Certain Information by Incorporation of Certain Documents by Reference
Reference
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<PAGE> 3
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12. Incorporation with Respect to S-2 or S-3 **
Registrants
13. Incorporation of Certain Information by **
Reference
14. Information with Respect to Registrants **
Other than S-3 or S-2 Registrants
15. Information with Respect to S-3 *
Companies
16. Information with Respect to S-2 or S-3 *
Companies
17. Information with Respect to Companies Other *
than S-3 or S-2 Companies
18. Information if Proxies, Consents or *
Authorizations are to be Solicited
19. Information if Proxies, Consents or *
Authorizations are not to be Solicited or
in an Exchange Offer
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____________________
* Not applicable upon filing of this Registration Statement; may be
included in subsequent post-effective amendments or supplements under certain
circumstances.
** Not applicable or answer is in the negative.
<PAGE> 4
PROSPECTUS
VENCOR, INC.
1,552,423 Shares of Common Stock
(par value $.25 per share)
_________________________
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.
_________________________
This Prospectus covers 1,552,423 shares of Common Stock, par value
$.25 per share (the "Common Stock"), which may be offered and issued by Vencor,
Inc. (the "Company") from time to time in connection with the acquisition
directly or indirectly by the Company of various businesses or properties, or
interests therein.
It is expected that the terms of acquisitions involving the issuance
of Common Stock covered by this Prospectus will be determined by direct
negotiations with the owners or controlling persons of the businesses or
properties to be acquired, and that the shares of Common Stock issued will be
valued at prices reasonably related to the current market prices either at the
time the terms of an acquisition are agreed upon or at or about the time of
delivery of such shares. No underwriting discounts or commissions will be
paid, although finders' fees may be paid from time to time with respect to
specific acquisitions. Any person receiving any such fees may be deemed to be
an underwriter within the meaning of the Securities Act of 1933, as amended
(the "Act").
With the consent of the Company, this Prospectus may also be used by
persons ("Selling Stockholders") who have received or will receive from the
Company Common Stock covered by this Prospectus or by prospectuses under other
registration statements in connection with acquisitions and who may wish to
sell such Common Stock under circumstances requiring or making desirable its
use. The Company may consent to the use of this Prospectus for a limited
period of time by Selling Stockholders and subject to limitations and
conditions which may be varied by agreement between the Company and Selling
Stockholders. Resales of such shares may be made on the New York Stock
Exchange, in the over-the-counter market, in private transactions or pursuant
to underwriting agreements. Such resales would be made at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. Selling Stockholders may be deemed to be
underwriters within the meaning of the Act.
Selling Stockholders may effect such transactions by selling shares to
or through broker-dealers, and such broker-dealers may receive compensation in
the form of underwriting discounts, concessions or commissions from Selling
Stockholders and/or purchasers of shares for whom they may act as agent.
Broker-dealers who participate with Selling Stockholders in the distribution of
shares may be deemed to be "underwriters" within the meaning of the Act, and
any commissions received by them may be deemed to be underwriting compensation.
<PAGE> 5
Stockholders may also offer shares of Common Stock issued in past and
future acquisitions by means of prospectuses under other available registration
statements or pursuant to exemptions from the registration requirements of the
Act, including sales which meet the requirements of Rule 145(d) under the Act.
Stockholders should seek the advice of their own counsel with respect to the
legal requirements of such sales.
The sales of Common Stock offered hereby have been, or will be prior
to their issuance, listed on the New York Stock Exchange, Inc. ("NYSE") subject
to official notice of issuance. On August 31, 1995, the closing price of the
Common Stock on the NYSE -- Composite Transactions was $29.625.
All expenses related to the Company's offering of Common Stock
pursuant to this Prospectus will be paid by the Company.
The date of this Prospectus is , 1995
2
<PAGE> 6
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON
REQUEST FROM THE COMPANY AT 3300 PROVIDIAN CENTER, 400 WEST MARKET STREET,
LOUISVILLE, KENTUCKY 40202, ATTENTION: JILL L. FORCE, SECRETARY (502-569-7300).
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 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 may be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth Street,
N.W., Room 1024, Judiciary Plaza, Washington, D.C. 20549 and at its regional
offices located at Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661 and 7 World Trade Center, 13th Floor, New York,
New York 10048. Copies of such material 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 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, New York 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 of 1933, as amended (the "Act"),
to which reference is hereby made.
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;
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
3
<PAGE> 7
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 of
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.
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
SELLING STOCKHOLDERS. 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.
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
4
<PAGE> 8
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 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
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<PAGE> 9
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 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.
6
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USE OF PROCEEDS
This Prospectus relates to shares of Common Stock of the Company which
may be offered and issued by the Company from time to time in the acquisition
of other businesses or properties, or interests therein. Other than the
businesses or properties acquired, there will be no proceeds to the Company
from these offerings. When this Prospectus is used in a public reoffering or
resale of the Common Stock acquired pursuant to this Prospectus, the Selling
Stockholders will receive the proceeds of such reoffering or resale.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been
passed upon for the Company 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.
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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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION NOT CONTAINED IN, OR INCORPORATED BY
REFERENCE IN, THIS PROSPECTUS, AND IF GIVEN OR MADE, VENCOR, INC.
SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR
SELLING STOCKHOLDERS. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN
ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL 1,552,423 Shares
TO MAKE SUCH OFFER OR SOLICITATION IN SUCH of Common Stock
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS
NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE
INFORMATION HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN
NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE SUCH
DATE.
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PROSPECTUS
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TABLE OF CONTENTS
Page
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AVAILABLE INFORMATION . . . . . . . . . . . . . . 3
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE . . . . . . . . . . . . . . . 3
THE COMPANY . . . . . . . . . . . . . . . . . . . 4
RECENT DEVELOPMENTS . . . . . . . . . . . . . . . 5
USE OF PROCEEDS . . . . . . . . . . . . . . . . . 7
LEGAL MATTERS . . . . . . . . . . . . . . . . . . 7 , 1995
EXPERTS . . . . . . . . . . . . . . . . . . . . . 7
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. 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 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,
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<PAGE> 13
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 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
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<CAPTION>
(A) EXHIBIT DESCRIPTION OF DOCUMENT
<S> <C>
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 incorporated 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.
5 Opinion and Consent of Greenebaum Doll & McDonald PLLC as to the legality of the shares being registered.
</TABLE>
II-3
<PAGE> 15
<TABLE>
<CAPTION>
(A) EXHIBIT DESCRIPTION OF DOCUMENT
<S> <C>
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>
(B) FINANCIAL STATEMENT SCHEDULES
None
ITEM 22. 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-4
<PAGE> 16
(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 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.
II-5
<PAGE> 17
The undersigned Company hereby undertakes as follows: prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
Company undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other Items of the applicable form.
The undersigned Company undertakes that every prospectus (i) that is
filed pursuant to the immediately preceding paragraph or (ii) that purports to
meet the requirements of Section 10(a)(3) of the Securities Act and is used in
connection with the offering of securities subject to Rule 415, except to the
extent permitted to be filed as a prospectus supplement, will be filed as a
part of an amendment to the registration statement and will not be used until
such amendment is effective, and that, for purposes 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 bona fide offering thereof.
The undersigned Company hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through
the date of responding to the request.
The undersigned Company hereby undertakes to supply by means of a
post-effective amendment all required information concerning a transaction, and
the company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-6
<PAGE> 18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company has duly caused this Amendment to 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. Earl Reed, III
-------------------------------------
W. Earl Reed, III
Vice President, Finance and Development
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to the 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>
* Chairman of the Board, President, Chief September 1, 1995
----------------------------------- Executive Officer (Principal Executive
W. Bruce Lunsford Officer) and Director
* Vice Chairman of the Board September 1, 1995
----------------------------------- Director
R. Gene Smith
* Vice President, Operations and Director September 1, 1995
-----------------------------------
Michael R. Barr
* Vice President, Finance and Development September 1, 1995
----------------------------------- (Principal Financial and Accounting
W. Earl Reed, III Officer) and Director
* Director September 1, 1995
-----------------------------------
William H. Lomicka
* Director September 1, 1995
-----------------------------------
William C. Ballard Jr.
* Director September 1, 1995
-----------------------------------
Greg D. Hudson
* Director September 1, 1995
-----------------------------------
Donna R. Ecton
*By /s/ W. Earl Reed, III
------------------------------------------------------
W. Earl Reed, III
Attorney-In-Fact
</TABLE>
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<PAGE> 19
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 Post-Effective Amendment No. 1 to a
Registration Statement on Form S-4 under the Securities Act of 1933, as amended
("Registration Statement"), relating to 1,552,423 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") to be issued with the Shares,
which may be issued by the Company from time to time in acquisitions.
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, when
issued by the Company in accordance with due authorization by its Board of
Directors or Executive Committee, will be validly issued, fully paid and
non-assessable and (ii) the Rights, when issued in compliance with the Rights
Agreement dated as of July 20, 1993, as amended on August 11, 1995, between the
Company and National City Bank, as Rights Agent, will 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 Post-Effective Amendment No. 1 to the Registration Statement (Form S-4) and
related Prospectus of Vencor, Inc. for the registration of 1,552,423 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-4 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 operations,
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
