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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
August 11, 1995
(Date of Report; Date of Earliest Event Reported)
VENCOR, INC.
(Exact Name of Registrant as specified in its Charter)
Delaware 1-10989 61-1055020
(State of Incorporation) (Commission File No.) (IRS Employer
Identification No.)
3300 Capital Holding Center
400 West Market Street
Louisville, Kentucky 40202
(Address of Principal Executive Offices) (Zip Code)
(502) 569-7300
(Registrant's telephone number, including area code)
Not applicable
(Former name or former address, if changed since last report)
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Items 1-4. Not Applicable.
Item 5. Other Events.
On August 11, 1995, the Company entered into the First
Amendment (the "First Amendment") to the Rights Agreement, dated as of
July 20, 1993, between the Company and National City Bank, as Rights Agent
(the "Rights Agreement"). Pursuant to the First Amendment, Exhibit II of
the Rights Agreement was amended so to correct and clarify any ambiguities
contained in the Summary of Rights to Purchase Series A Participating
Preferred Stock.
The foregoing summary is qualified in its entirety by reference
to the First Amendment, a copy of which is attached hereto as
Exhibit 4.3(a) and is hereby incorporated by reference. Capitalized terms
not defined in this paragraph have the meanings assigned to them in the
Rights Agreement, as amended, which is hereby incorporated by reference.
Item 6. Not Applicable.
Item 7. Financial Statements
Pro Forma Financial Information and Exhibits.
(a)-(b) Not Applicable.
(c) Exhibits Required by Item 601 of Regulation S-K.
4.3 Rights Agreement dated as of July 20, 1993.
4.3(a) First Amendment to Rights Agreement dated as of
August 11, 1995.
Item 8. Not Applicable.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Dated: August 11, 1995
VENCOR, INC.
By:/s/Jill L. Force
Jill L. Force
General Counsel and Secretary
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EXHIBIT INDEX
Page No. in
Sequentially
Exhibit No. Description Numbered 8-K
4.3 Rights Agreement dated as of July 20, *
1993
4.3(a) First Amendment to Rights Agreement
dated as of August 11, 1995
* Included as Exhibit 1 to Registration Statement on Form 8-A filed
July 21, 1993; such Exhibit is incorporated herein by reference.
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EXHIBIT 4.3(a)
FIRST AMENDMENT TO RIGHTS AGREEMENT
This First Amendment (this "Amendment") dated as of August 11,
1995 to the Rights Agreement (the "Rights Agreement") dated as of July 20,
1993 between Vencor, Incorporated, a Delaware corporation, now known as
Vencor, Inc. (the "Company") and National City Bank, Rights Agent, a
national banking association existing under the laws of the State of Ohio
(the "Rights Agent"); all capitalized terms not defined herein shall have
the meanings ascribed to such term in the Rights Agreement.
WHEREAS, the Board of Directors of the Company declared a
dividend of one preferred stock purchase right for each share of the
Company's Common Stock outstanding as of the close of business on August 1,
1993; and
WHEREAS, each currently issued and outstanding share of the
Company's Common Stock entitles the holder thereof to one Right; and
WHEREAS, each of the Rights is currently represented only by
the share of Common Stock entitled to such Right; and
WHEREAS, Section 27 of the Rights Agreement provides that the
Company may amend the Rights Agreement without the approval of any holders
of Rights Certificates in order, among other things, to correct or
supplement any provision in the Rights Agreement, to cure any ambiguity or
to make any other provisions with respect to the Rights which the Company
may deem necessary or desirable; and
WHEREAS, the Company has deemed it necessary or desirable to
correct or supplement Exhibit II to the Rights Agreement by this Agreement.
NOW THEREFORE, in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged the Company and the Rights Agent hereby agree as
follows:
1. Exhibit II. Exhibit II of the Rights Agreement shall be
deleted in its entirety and replaced with a new Exhibit II, attached to
this Amendment as Annex A.
2. Governing Law. This amendment shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such
State applicable to contracts to be made and performed entirely within such
State.
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3. Counterparts. This Amendment may be executed in
counterparts and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, all as of the date and year
first above written.
VENCOR, INC.
Attest:
By:________________________ By:/s/Jill L. Force
Name:June N. King Name:Jill L. Force
Title:Assistant Secretary Title:General Counsel and
and General Counsel Secretary
NATIONAL CITY BANK, AS
RIGHTS AGENT
Attest:
By:/s/Deborah A. Zupkovich By:/s/David B. Davis
Name:Deborah A. Zupkovich Name:David B. Davis
Title:Trust Officer Title:Vice President
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(Annex A)
EXHIBIT II
UNDER CERTAIN CIRCUMSTANCES AS PROVIDED IN THE RIGHTS AGREEMENT
DATED AS OF JULY 20, 1993, AMONG VENCOR, INCORPORATED AND
NATIONAL CITY BANK, AS RIGHTS AGENT (THE "RIGHTS AGREEMENT"),
AS THE SAME MAY BE AMENDED FROM TIME TO TIME, RIGHTS ISSUED TO
OR BENEFICIALLY OWNED BY A PERSON WHO IS OR BECOMES AN
ACQUIRING PERSON (OTHER THAN PURSUANT TO A PERMITTED OFFER) OR
AN ASSOCIATE OR AFFILIATE OF SUCH ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR, UNDER CERTAIN
CIRCUMSTANCES, TRANSFEREES THEREOF, WILL BECOME NULL AND VOID
AS PROVIDED IN SECTIONS 7(e) AND 11(a)(ii) OF THE RIGHTS
AGREEMENT AND THEREAFTER MAY NOT BE TRANSFERRED TO ANY PERSON.
SUMMARY OF RIGHTS TO PURCHASE
SERIES A PARTICIPATING PREFERRED STOCK
On July 20, 1993, the Board of Directors of Vencor, Incorporated, a
Delaware corporation, now known as Vencor, Inc. (the "Company") declared a
dividend of one Preferred Stock Purchase Right (the "Right") for each
outstanding share of Common Stock ("Common Stock"), of the Company. The
dividend is payable to holders of record of Common Stock at the close of
business on August 1, 1993 (the "Record Date"). Each Right entitles the
registered holder to purchase from the Company one one-hundredth of a share
of Series A Preferred Stock of the Company ("Preferred Stock") at a
Purchase Price of $110. The terms and conditions of the Rights are
contained in a Rights Agreement dated as of July 20, 1993 between the
Company and National City Bank, as Rights Agent (the "Rights Agreement").
Capitalized terms not otherwise defined herein shall have the meanings
assigned to them in the Rights Agreement, as amended.
As discussed below, initially the Rights will not be exercisable,
certificates for the Rights will not be issued, and the Rights will
automatically trade with the Common Stock.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding and no separate Rights
certificates will be distributed. Until the earlier to occur of (i) the
first date (the "Stock Acquisition Date") of a public announcement that,
without the prior approval of Vencor (which approval is prohibited under
certain circumstances as described below), a person or group of Affiliated
or Associated persons (an "Acquiring Person") has acquired, or obtained the
right to acquire Beneficial Ownership of securities having 15% or more of
the voting power of all outstanding voting securities of
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the Company or (ii) ten days (unless such date is extended by the Board of
Directors of the Company) following the commencement of (or a public
announcement of an intention to make) a tender offer or exchange offer
which would result in any person or group of related persons becoming an
Acquiring Person (the earlier of such dates being called the "Rights
Distribution Date"), the Rights will be evidenced by the Common Stock
certificates. Until the Rights Distribution Date, the Rights will be
transferred only with Common Stock certificates. New Common Stock
certificates issued after the Rights Distribution Date upon transfer or new
issuance of the Common Stock will contain a notation incorporating the
Rights Agreement by reference. Until the Rights Distribution Date (or
earlier redemption, exchange, or expiration of the Rights), the surrender
for transfer of any certificates for Common Stock outstanding as of the
Rights Distribution Date will also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate. As soon
as practicable following the Rights Distribution Date, separate
certificates evidencing the Rights ("Rights Certificate") will be mailed to
holders of record of the Common Stock as of the close of business on the
Rights Distribution Date, and the separate Rights Certificates alone will
evidence the Rights.
The Rights will not be exercisable until the Rights Distribution
Date. The Rights will expire on the earliest of (i) the close of business
July 19, 2003; (ii) consummation of a merger transaction with a person or
group who acquired Common Stock pursuant to a Permitted Offer, and is
offering in the merger the same form of consideration, and not less than
the price per share, paid pursuant to the Permitted Offer; (iii) redemption
by the Company as described below; or (iv) or exchange by the Company as
described below.
The Purchase Price payable, and the number of shares of Vencor Series
A Preferred Stock or other securities issuable, upon exercise of the Rights
will be subject to an adjustment from time to time to prevent dilution (i)
in the event of a stock dividend on, or a subdivision, combination or
reclassification of the Preferred Stock, (ii) upon the grant to holders of
the Preferred Stock, certain convertible securities or securities having
rights, privileges and preferences the same as, or more favorable than, the
Preferred Stock at less than the current market price of the Preferred
Stock or (iii) upon the distribution to holders of the Preferred Stock of
evidences of indebtedness, cash (excluding regular quarterly cash dividends
out of earnings or retained earnings), assets (other than a dividend
payable in Preferred Stock) or of subscription rights or warrants (other
than those referred to above).
In the event that, after the first date of public announcement by the
Company or an Acquiring Person that an
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Acquiring Person has become such, the Company is involved in a merger or
other business combination transaction in which the Common Stock is
exchanged or changed (other than a merger with a person or group who
acquired Common Stock pursuant to a Permitted Offer and is offering in the
merger not less than the price paid pursuant to the Permitted Offer and the
same form of consideration paid in the Permitted Offer), or 50% or more of
the Company's assets or earning power are sold (in one transaction or a
series of transactions), proper provision shall be made so that each holder
of a Right (other than such Acquiring Person) shall thereafter have the
right to receive, upon the exercise thereof at the then current exercise
price of the Right, that number of shares of common stock of the acquiring
company (or, in the event that there is more than one acquiring company,
the acquiring company receiving the greatest portion of the assets or
earning power transferred) which at the time of such transaction would have
a market value of two times the exercise price of the Right (such right
being called the "Flip-over").
In the event that an Acquiring Person becomes such, proper provision
shall be made so that each holder of a Right will for a 60 day period
thereafter have the right to receive upon exercise that number of shares of
Common Stock having a market value of two times the exercise price of the
Right, to the extent available, and then (after all authorized and
unreserved shares of Common Stock have been issued) a common stock
equivalent (such as Preferred Stock or another equity security with at
least the same economic value as the Common Stock) having a market value of
two times the exercise price of the Right, with Common Stock to the extent
available being issued first (such right being called the "Flip-in").
The holder of a Right will continue to have the Flip-over whether or
not such holder exercises the Flip-in. Upon an Acquiring Person becoming
such (other than pursuant to a Permitted Offer), any rights that are issued
to or Beneficially Owned by such Acquiring Person or, under certain
circumstances, transferees thereof, shall become null and void and
thereafter may not be transferred to any person.
With certain exceptions, no adjustments in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1%
in such Purchase Price. No fractions of shares will be issued and, in lieu
thereof, an adjustment in cash will be made based on the market price of
the Common Stock on the last trading date prior to the date of exercise.
At any time prior to the earlier to occur of (i) a person becoming an
Acquiring Person or (ii) the expiration of the Rights, the Company may
redeem the Rights in whole, but not in part, at a price of $.01 in cash per
Right (the "Redemption Price"), which redemption shall be effective upon
the action of
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the Board of Directors of the Company in the exercise of its sole
discretion. Additionally, the Company may, following the Stock Acquisition
Date, redeem the then outstanding Rights in whole, but not in part, at the
Redemption Price, following an event giving rise to, and the expiration of
the exercise period for, the Flip-in, provided that redemption is prior to
an event giving rise to the Flip-over, either (i) in connection with a
merger or other business combination transaction or series of transactions
involving the Company in which all holders of Common Stock are treated
alike but not involving (other than as a holder of Common Stock being
treated like all other such holders) an Acquiring Person or (ii) if and for
as long as the Acquiring Person is not thereafter the Beneficial Owner of
15% of the shares of Common Stock and, at the time of redemption, no other
persons are Acquiring Persons. Upon the effective date of the redemption
of the Rights, the right to exercise the Rights will terminate and the only
right of the holders of Rights will be to receive the Redemption Price.
The Board of Directors of the Company may, at its option, at any time
after any person becomes an Acquiring Person, exchange all or part of the
then outstanding and exercisable Rights for Common Shares at an exchange
ratio of one Common Share per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the
Record Date. Notwithstanding the foregoing, the Board of Directors shall
not be empowered to effect such exchange at any time after any person
(other than the Company, any subsidiary of the Company, any employee
benefit plan of the Company or any such subsidiary, or any entity holding
Common Shares for or pursuant to the terms of any such plan), together with
all Affiliates and Associates of such person, becomes the Beneficial Owner
of 50% or more of the Common Shares then outstanding. Immediately upon the
action of the Board of Directors of the Company ordering the exchange of
any Rights, and without any further action and without any notice, the
right to exercise such Rights shall terminate and the only right thereafter
of a holder of such Rights shall be to receive that number of Common Shares
equal to the number of such Rights held by such holder.
Prior to a person becoming an Acquiring Person the Board of Directors
of the Company may amend the Rights Agreement without approval of the
holders of the Rights in order to cure any ambiguity, to correct or
supplement any provision contained in the Rights Agreement, to make any
other provisions with respect to the Rights that the Company may deem
necessary or desirable or to lower the threshold at which an Acquiring
Person becomes such to not less than the greater of (i) .001% plus the
percentage amount then Beneficially Owned by any person (other than the
Company and certain of its Affiliates) and (ii) 10%. After the time a
person becomes an Acquiring Person, the provisions of the Rights Agreement
may only be amended by the Board of Directors to
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make changes that do not adversely affect the interests of holders of
Rights.
The Preferred Stock purchasable upon exercise of the Rights will be
nonredeemable and junior to any other series of preferred stock the Company
may issue (unless otherwise provided in the terms of such stock). Each
share of Preferred Stock will have a preferential quarterly dividend in an
amount equal to 100 times the dividend declared on each share of Common
Stock, but in no event less than $1.00. In the event of liquidation, the
holders of Preferred Stock will receive a preferred liquidation payment
equal to $100 per share, plus an amount equal to accrued and unpaid
dividends thereon to the date of such payment. Each share of Preferred
Stock will have 100 votes, voting together with the shares of Common Stock.
In the event of any merger, consolidation or other transaction in which
shares of Common Stock are exchanged, each share of Preferred Stock will be
entitled to receive 100 times the amount and type of consideration received
per share of Common Stock. The Company shall not be required to issue
fractions of a share of Preferred Stock.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends. The Company shall not be required
to issue fractions of Rights.
The Rights will have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire
the Company without conditioning the offer on the Rights being redeemed or
a substantial number of Rights being acquired. However, the Rights should
not interfere with any tender offer or merger approved by the Company
(other than with an Acquiring Person) because the Rights (i) do not become
exercisable in the event of a Permitted Offer and expire automatically upon
the consummation of a merger in which the form of consideration is the same
as, and the price is not less than the price paid in, the Permitted Offer
and (ii) are redeemable and exchangeable in connection with an approved
merger in which all holders of the Common Stock are treated alike.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as Exhibit 1 to a Registration Statement on Form 8-A
filed on July 21, 1993.
As of August 11, 1995, the Rights Agreement was amended (the "First
Amendment") and filed with the Securities and Exchange Commission as
Exhibit II to Form 8-A/A on August 11, 1995. The First Amendment amended
Exhibit II of the Rights Agreement to correct and clarify any ambiguities
contained in the Summary of Rights to Purchase Series A Participating
Preferred Stock.
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The foregoing summary of certain terms of the Rights and the Rights
Agreement, as amended, is qualified in its entirety by reference to the
Rights Agreement and First Amendment. A copy of the Rights Agreement and
the First Amendment is available free of charge from the Company by written
request, Vencor, Incorporated, 3300 Capital Holding Center, 400 West Market
Street, Louisville, Kentucky 40202, Attention: Corporate Secretary. This
summary description of the Rights, the Rights Agreement and the First
Amendment does not purport to be complete and is qualified in its entirety
by reference to the Rights Agreement, as amended from time to time, which
is incorporated in this summary description by reference.
