As filed with the Securities and Exchange Commission on April 21, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
VENCOR, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
61-1055020
(I.R.S. Employer Identification No.)
3300 PROVIDIAN CENTER, 400 WEST MARKET STREET, LOUISVILLE, KENTUCKY 40202
(Address of Principal Executive Offices) (Zip Code)
THERATX, INCORPORATED 1996 STOCK OPTION/STOCK ISSUANCE PLAN
THERATX, INCORPORATED AMENDED AND RESTATED 1994
STOCK OPTION/STOCK ISSUANCE PLAN
1989 AMENDED AND RESTATED STOCK OPTION PLAN OF HELIAN HEALTH GROUP, INC.
(Full Title of Plans)
JILL L. FORCE
SENIOR VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
VENCOR, INC.
3300 PROVIDIAN CENTER
400 WEST MARKET STREET
LOUISVILLE, KENTUCKY 40202
(Name and Address of Agent For Service)
(502) 596-7300
Telephone Number, Including Area Code, of Agent For Service.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Amount to be Proposed Offering Aggregate Offering Amount of
Title of Securities to be Registered Registered Price Per Share(1) Price(1) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.25 per share (2) 490,000 $37.06 $18,159,400.00 $5,503.03
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<FN>
(1) Estimated pursuant to Rule 457(h)(1), and is being utilized solely for the
purpose of calculating the registration fee, based on the average of the
high and low prices of the Vencor, Inc., Common Stock, par value $.25 per
share on the New York Stock Exchange Composite Tape on April 14, 1997.
(2) Each share of Common Stock, par value $.25 per share of Vencor, Inc. is
issued with one right to purchase Series A Participating Preferred Stock of
Vencor, Inc.
</FN>
</TABLE>
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<PAGE>
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
Item 1. Plan Information
All information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"), and the
Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information
All information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in (a) through (c) below are incorporated herein
by reference.
(a) Vencor, Inc.'s (the "Registrant") Annual Report on Form 10-K (the
"10-K") for the year ended December 31, 1996.
(b) The Registrant's Current Report on Form 8-K, dated March 18, 1997.
(c) The description of the Registrant's Common Stock, par value $.25
per share (the "Common Stock"), contained in the Registrant's Registration
Statement on Form 8-A (File No. 1-10989) filed with the Commission on January
22, 1992 and the description of the Registrant's Participating Preferred Stock
Purchase Rights contained in the Registrant's Registration Statements on Form
8-A and Form 8-A/A filed with the Commission on July 21, 1993 and August 11,
1995, respectively.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
William C. Ballard Jr., a director of the Registrant, is of counsel to
the law firm of Greenebaum Doll & McDonald PLLC and as of February 28, 1997
beneficially owned 31,720 shares of the Common Stock. Members of Greenebaum Doll
& McDonald PLLC who participated in the preparation of this Registration
Statement beneficially owned approximately 10,850 shares of the Common Stock as
of February 28, 1997. Greenebaum
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Doll & McDonald PLLC, Louisville, Kentucky, has rendered the opinion as to the
validity of the Common Stock being registered hereunder.
Item 6. Indemnification of Officers and Directors.
The Registrant's Certificate of Incorporation provides that, to the
fullest extent authorized by the Delaware General Corporation Law ("Delaware
Law"), the Registrant shall indemnify each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"Proceeding") because he is or was a director or officer of the Registrant, or
is or was serving at the request of the Registrant as a director, officer,
employee, trustee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against all expenses, liabilities and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) actually and reasonably incurred or suffered
by him in connection with such Proceeding.
Under Section 145 of Delaware Law, a corporation may indemnify a
director, officer, employee or agent of the corporation against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with any threatened,
pending or completed Proceeding (other than an action by or in the right of the
corporation) if he acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. In the case of an action brought by or in the
right of the corporation, the corporation may indemnify a director, officer,
employee or agent of the corporation against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of any threatened, pending or completed action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that a
court 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 deems proper.
The Registrant's Certificate of Incorporation also provides that
expenses incurred by a person in his capacity as director of the Registrant in
defending a Proceeding may be paid by the Registrant in advance of the final
disposition of such Proceeding as authorized by the Board of Directors of the
Registrant upon receipt of an undertaking by or on behalf of such person to
repay such amounts unless it is ultimately determined that such person is
entitled to be indemnified by the Registrant pursuant to Delaware Law. Under
Section 145 of Delaware Law, a corporation must indemnify a director, officer,
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employee or agent of the corporation against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense of
a Proceeding if he has been successful on the merits or otherwise in the defense
thereof.
The Registrant's Certificate of Incorporation provides that a director
of the Registrant shall not be personally liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for breach of a director's duty of loyalty to the
Registrant or its stockholders, (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 Delaware Law for the willful or negligent unlawful payment of
dividends, stock purchase or stock redemption or (iv) for any transaction from
which a director derived an improper personal benefit.
The Registrant maintains directors' and officers' liability insurance
which insures against liabilities that directors and officers of the Registrant
may incur in such capacities.
Item 7. Exemption from Registration Claim.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Description
4.1 Certificate of Incorporation of the Registrant as amended
(incorporated by reference to Exhibit 3 to the Registrant's
Form 10-Q for the quarterly period ended September 30, 1995
(File No. 1-10989)).
4.2 Second Amended and Restated By-laws of the Registrant
(incorporated by reference to Exhibit 3.2 to the Registrant's
Form 10-K for the year ended December 31, 1995 (File No.
1-10989)).
4.3 Specimen Common Stock Certificate (incorporated by reference
to Exhibit 4.1 to the Registrant's Form 10-K for the year
ended December 31, 1995 (File No. 1-10989)).
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4.4 Rights Agreement, dated July 20, 1993, between the Registrant
and National City Bank of Cleveland, Ohio, as Rights Agent
(incorporated by reference to Exhibit 4.4 to the Registrant's
Current Report on Form 8-K, dated July 20, 1993 (File No.
1-10989)).
4.5 First Amendment to Rights Agreement, dated as of August 11,
1995, between the Registrant and National City Bank of
Cleveland, Ohio, as Rights Agent (incorporated by reference to
Exhibit 4.3(a) to the Registrant's Current Report on Form 8-K,
dated August 11, 1995 (File No. 1-10989)).
4.6 TheraTx, Incorporated's ("TheraTx") Amended and Restated 1994
Stock Option/Stock Issuance Plan (the "1994 Plan"), as amended
(incorporated by reference to Exhibit 10.7 to TheraTx's
Registration Statement on Form S-1 (No. 33-92402)).
4.7 Amendment to the 1994 Plan.
4.8 TheraTx's 1996 Stock Option/Stock Issuance Plan (incorporated
by reference to Exhibit 99.1 to TheraTx's Registration
Statement on Form S-8 (No. 333-15171)).
4.9 1989 Amended and Restated Stock Option Plan of Helian Health
Group, Inc. ("Helian") (incorporated by reference to Exhibit
10.47 to Helian's Registration Statement on Form S-1 (No.
33-31520), Amendment Number 2 thereto filed November 21, 1989
and Post- Effective Amendment Number 1 and Number 2 thereto
filed November 22, 1990 and January 16, 1991).
5 Opinion of Greenebaum Doll & McDonald PLLC as to the validity
of the Common Stock.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Greenebaum Doll & McDonald PLLC (contained in
Exhibit 5 attached hereto).
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Item 9. Undertakings
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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;
(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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant'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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provision, or otherwise, the
Registrant 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
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant 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 Registrant 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Louisville, State of Kentucky, on this 21st day of
April, 1997.
VENCOR, INC.
By: /s/ W. Bruce Lunsford
W. Bruce Lunsford
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons on behalf
of the Registrant in the indicated capacities on the dates indicated.
SIGNATURE TITLE DATE
/s/ MICHAEL R. BARR Executive Vice President, Chief
Michael R. Barr Operating Officer and Director March 31, 1997
/s/ WILLIAM C. BALLARD JR. Director
William C. Ballard Jr. March 31, 1997
/s/ WALTER F. BERAN Director
Walter F. Beran March 31, 1997
/s/ DONNA R. ECTON Director
Donna R. Ecton March 31, 1997
/s/ GREG D. HUDSON Director
Greg D. Hudson March 31, 1997
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SIGNATURE TITLE DATE
/s/ RICHARD A. LECHLEITER Vice President, Finance and
Richard A. Lechleiter Corporate Controller (Principal
Accounting Officer) March 31, 1997
/s/ WILLIAM H. LOMICKA Director
William H. Lomicka March 31, 1997
/s/ W. BRUCE LUNSFORD Chairman of the Board, President,
W. Bruce Lunsford Chief Executive Officer (Principal
Executive Officer) and Director March 31, 1997
/s/ W. EARL REED, III Executive Vice President, Chief
W. Earl Reed, III Financial Officer (Principal
Financial Officer) and Director March 31, 1997
/s/ R. GENE SMITH Vice Chairman of the Board and
R. Gene Smith Director March 31, 1997
/s/ JACK O. VANCE Director
Jack O. Vance March 31, 1997
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Exhibit 4.7
AMENDMENT TO
THERATX, INCORPORATED
1994 STOCK OPTION/STOCK ISSUANCE PLAN
(AMENDED AND RESTATED AS OF MARCH 21, 1995)
Pursuant to resolutions of the Board of Directors of TheraTx,
Incorporated, dated February 9, 1997, Article Two "Discretionary Option Grant
Program," Subsection III "Corporate Transactions/Changes in Control," Paragraph
D of the TheraTx, Incorporated 1994 Stock Option/Stock Issuance Plan (Amended
and Restated as of March 21, 1995)(the "Plan") is hereby amended to read as
follows:
D. (i) Any options which are assumed or replaced in the Corporate
Transaction and do not otherwise accelerate at that time shall automatically
accelerate (and any of the Corporation's outstanding repurchase rights which do
not otherwise terminate at the time of the Corporate Transaction shall
automatically terminate and the shares of Common Stock subject to those
terminated rights shall immediately vest in full) in the event the Optionee's
Service should subsequently terminate by reason of an "Involuntary Termination"
(as defined below) within twenty-four (24) months following the effective date
of such Corporate Transaction. Any options so accelerated shall remain
exercisable for fully-vested shares until the earlier of (a) the expiration of
the option term or (b) the expiration of the one (1)-year period measured from
the effective date of the Involuntary Termination.
(ii) For purposes of this paragraph, "Involuntary Termination"
shall mean the termination of the Service of any individual, except those
executive officers (the "Executive Officers") entitled to special severance
benefits under the Corporation's Executive Officer Severance Policy, which
occurs by reason of:
(a) such individual's involuntary dismissal or discharge by
the Corporation for reasons other than Misconduct, or
(b) such individual's voluntary resignation following (1) a
change in his or her position with the Corporation which materially reduces his
or her level of responsibility, (2) a reduction in his or her level of
compensation (including base salary, fringe benefits and participation in
corporate-performance based bonus or incentive programs) by more than fifteen
percent (15%) or (3) a relocation of such individual's place of employment by
more than fifty (50) miles, provided and only if such change, reduction or
relocation is effected by the Corporation without the individual's consent.
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The definition of Involuntary Termination for the Executive Officers
will be governed by the Executive Officer Severance Policy approved by
the Board on April 25, 1996.
Except as provided herein, the terms of the Plan will remain unchanged.
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Exhibit 5
[GREENEBAUM DOLL & MCDONALD PLLC]
April 21, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-1004
Re: Vencor, Inc.--Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as legal counsel in connection with the preparation of a
registration statement on Form S-8 under the Securities Act of 1933, as amended
(the "Registration Statement"), covering 490,000 shares of common stock, par
value $.25 per share (the "Shares"), and associated Series A Participating
Preferred Stock Purchase Rights, of Vencor, Inc., a Delaware corporation (the
"Company"), to be issued under the TheraTx, Incorporated 1996 Stock Option/Stock
Issuance Plan, TheraTx, Incorporated Restated 1994 Stock Option/Stock Issuance
Plan and 1989 Amended and Restated Stock Option Plan of Helian Health Group,
Inc. (the "Plans").
We have examined and are familiar with the Company's Certificate of
Incorporation, as amended, and Second Amended and Restated By-laws, and the
various corporate records and proceedings relating to the organization of the
Company and the proposed issuance of the Shares. We have also examined such
other documents and proceedings as we have considered necessary for the purpose
of rendering this opinion.
Based on the foregoing, it is our opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the terms of
the Registration Statement and the Plans, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this Firm under the heading
"Interests of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
/s/ Greenebaum Doll & McDonald PLLC
GREENEBAUM DOLL & MCDONALD PLLC
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the TheraTx, Incorporated 1996 Stock Option/Stock Issuance
Plan, the TheraTx, Incorporated Amended and Restated 1994 Stock Option/Stock
Issuance Plan, and the 1989 Amended and Restated Stock Option Plan of Helian
Health Group, Inc., of our report dated February 17, 1997, with respect to the
consolidated financial statements and schedule of Vencor, Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Louisville, Kentucky
April 18, 1997
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