<PAGE>
As filed with the Securities and Exchange Commission on November 21, 1997
Registration Statement No. 333-__
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VENCOR, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 61-1055020
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
400 WEST MARKET STREET
LOUISVILLE, KENTUCKY 40202
(Address of Principal Executive Offices)
VENCOR, INC. 1997 STOCK OPTION PLAN FOR NON-
EMPLOYEE DIRECTORS
(Full title of the plan)
JILL L. FORCE
Senior Vice President, General Counsel
and Secretary
Vencor, Inc.
400 West Market Street
Louisville, Kentucky 40202
(Name and address of agent for service)
(502) 596-7300
(Telephone number, including area code,
of agent for service)
________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================
Proposed Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered price per share(1) price(1) registration fee
==========================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par 200,000 shares $26.00 $5,200,000 $1,575.76
value $0.25 per share each
with .667 of an associated
participating preferred
stock purchase right
</TABLE>
- --------------------
(1) Estimated solely for the purpose of calculating the registration fee. This
estimate has been calculated in accordance with Rule 457(h) of the Securities
Act of 1933, as amended, and is based on the average of the high and low prices
per share as reported on the New York Stock Exchange on November 17, 1997.
<PAGE>
PART II
-------
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
- ------ ----------------------------------------
The following documents filed by Vencor, Inc. (the "Registrant") with
the Securities and Exchange Commission (the "Commission") (File No. 1-10989) are
incorporated into this Registration Statement by reference:
(a) Registrant's Annual Report on Form 10-K for the year ended December
31, 1996.
(b) Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997, and September 30, 1997.
(c) The Registrant's Current Report on Form 8-K dated March 18, 1997.
(d) The Registrant's Current Report on Form 8-K/A dated March 18, 1997.
(e) The Registrant's Current Report on Form 8-K dated June 19, 1997.
(f) The Registrant's Current Report on Form 8-K/A dated June 19, 1997.
(g) The Registrant's Current Report on Form 8-K dated July 21, 1997.
(h) The Registrant's Current Report on Form 8-K dated October 21, 1997.
(i) The Registrant's Current Report on Form 8-K dated October 22, 1997.
(j) The Registrant's Current Report on Form 8-K dated October 23, 1997.
(k) The description of Registrant's shares of Common Stock, par value $.25
per share (the "Common Stock"), contained in the Registration
Statement filed by the Registrant with the Commission on Form 8-A,
dated January 22, 1992; the description of the Registrant's
Participating Preferred Stock Purchase Rights contained in the
Registration Statement filed by the Registrant with the Commission on
Form 8-A dated July 21, 1993, and Form 8-A/A dated August 11, 1995;
and all other amendments and reports filed for the purpose of updating
such descriptions prior to the termination of the offering of the
Common Stock and interests offered hereby.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the filing date of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein (or in any other subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
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Item 4. DESCRIPTION OF SECURITIES.
- ------- --------------------------
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
- ------- ---------------------------------------
Members of Greenebaum Doll & McDonald PLLC who participated in the
preparation of the Registration Statement beneficially owned approximately 9,900
shares of Registrant's Common Stock as of October 31, 1997. Greenebaum Doll &
McDonald PLLC, Louisville, Kentucky, has rendered the opinion as to the validity
of the securities being registered hereunder.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
- ------- ------------------------------------------
Section 145 of the Delaware General Corporation Law ("GCL") permits a
Delaware corporation to indemnify any person who was or is, or is threatened to
be made, a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation) by reason of the fact that
such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such person acted in good faith and in the
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, such person had no reasonable cause to believe the person's conduct
was unlawful. A Delaware corporation may indemnify such persons in actions
brought by or in the right of the corporation to procure a judgment in its favor
under the same conditions except that no indemnification is permitted in respect
of any claim, issue or matter as to which such person has been adjudged to be
liable to the corporation unless and to the extent the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought
determines upon application that, in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses as
the Court of Chancery or other such court deems proper. To the extent that a
present or former director or officer has been successful on the merits or
otherwise in defense of any action referred to above, or in defense of any
claim, issue or matter therein, the corporation must indemnify such person
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith. Corporations, under certain circumstances,
may pay expenses incurred by an officer or director in advance of the final
disposition of an action for which indemnification may be permitted or required.
Indemnification and advancement of expenses provided for or granted pursuant to
Section 145 are not exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
Section 145 further provides that a corporation may maintain insurance against
liabilities for which indemnification is not expressly provided by statute.
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)
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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, 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 such person 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 upon receipt of 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 directors or officers of the Company,
their heirs, executors and administrators. No amendment to the Company's
Certificate of Incorporation, as amended, may increase the liability of
directors or officers for their acts or omissions occurring prior to such
amendment. The mandatory indemnification provided by Article IX is expressly
nonexclusive 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 officers and directors liability
insurance policies. These policies cover any negligent act, error or omission
of a director or officer, subject to certain exclusions. The limit of liability
under the policies is $40 million in the aggregate annually for coverages in
excess of deductibles.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
- ------- ------------------------------------
Not Applicable.
ITEM 8. EXHIBITS.
- ------- ---------
The following exhibits are filed as part of this Registration Statement:
4.1 Certificate of Incorporation of the Company, as amended. Exhibit 3 to
the Company's Form 10-Q for the quarterly period ended September 30,
1995 (Comm. File No. 1-10989) is hereby incorporated by reference.
4.2 Second Amended and Restated Bylaws of the Company. Exhibit 3.2 to the
Company's Form 10-K for the year ended December 31, 1995 (Comm. File
No. 1-10989) is hereby incorporated by reference.
5 Opinion of Greenebaum Doll & McDonald PLLC.
23.1 Consent of Ernst & Young LLP.
4
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23.2 Consent of Greenebaum Doll & McDonald PLLC (included in Exhibit 5).
24 Power of Attorney (Included on signature page of Registration
Statement on Form S-8).
ITEM 9. UNDERTAKINGS.
- ------- -------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in aggregate, represent
a fundamental change in the information set forth in
the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
Item 9 do not apply if the Registration Statement is on Form S-3 or
Form S-8 and the information required to be included in the post-
effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13(a) 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of Registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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
provisions, or otherwise, Registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
5
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indemnification against such liabilities (other than the payment
by Registrant of expenses incurred or paid by a director, officer
or controlling person of 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, 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 Act and will be governed by the final adjudication of such
issue.
6
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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 the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Louisville, Commonwealth of Kentucky, on November 21,
1997.
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 AND JILL L.
FORCE, AND EACH OF THEM WITH FULL POWER TO ACT WITHOUT THE OTHER, HIS OR HER
TRUE AND LAWFUL ATTORNEY-IN-FACT AND AGENT, WITH FULL POWER OF SUBSTITUTION AND
RESUBSTITUTION, FOR HIM OR HER AND IN HIS OR HER NAME, PLACE AND STEAD, IN ANY
AND ALL CAPACITIES, TO SIGN ANY AND ALL AMENDMENTS OR POST-EFFECTIVE AMENDMENTS
TO THIS REGISTRATION STATEMENT, AND TO FILE THE SAME, WITH ALL EXHIBITS THERETO,
AND OTHER DOCUMENTS IN CONNECTION THEREWITH, WITH THE SECURITIES AND EXCHANGE
COMMISSION AND ANY STATE OR OTHER REGULATORY AUTHORITY, GRANTING UNTO SAID
ATTORNEYS-IN-FACT AND AGENTS, AND EACH OF THEM, FULL POWER AND AUTHORITY TO DO
AND PERFORM EACH AND EVERY ACT AND THING REQUISITE OR NECESSARY TO BE DONE IN
AND ABOUT THE PREMISES, AS FULLY TO ALL INTENTS AND PURPOSES AS HE OR SHE MIGHT
OR COULD DO IN PERSON, HEREBY RATIFYING AND CONFIRMING ALL THAT EACH SUCH
ATTORNEY-IN-FACT AND AGENT, OR HIS OR HER SUBSTITUTE, MAY LAWFULLY DO OR CAUSE
TO BE DONE BY VIRTUE HEREOF.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in their
capacities and on the date indicated.
Name and Signature Title Date
/s/ Michael R. Barr Executive Vice President, November 21, 1997
- ------------------------------ Chief Operating Officer
Michael R. Barr and Director
/s/ Walter F. Beran Director November 21, 1997
- ------------------------------
Walter F. Beran
/s/ Ulysses L. Bridgeman, Jr. Director November 21, 1997
- ------------------------------
Ulysses L. Bridgeman, Jr.
/s/ Elaine L. Chao Director November 21, 1997
- ------------------------------
Elaine L. Chao
7
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Director
- -------------------------------
Donna R. Ecton
/s/ Greg D. Hudson Director November 21, 1997
- -------------------------------
Greg D. Hudson
/s/ Richard A. Lechleiter Vice President, Finance November 21, 1997
- ------------------------------- and Corporate Controller
Richard A. Lechleiter (Principal Accounting
Officer)
/s/ William H. Lomicka Director November 21, 1997
- -------------------------------
William H. Lomicka
/s/ W. Bruce Lunsford Chairman of the Board, November 21, 1997
- ------------------------------ President, Chief Executive
W. Bruce Lunsford Officer (Principal Executive
Officer) and Director
/s/ W. Earl Reed, III Executive Vice President, November 21, 1997
- ------------------------------ Chief Financial Officer
W. Earl Reed, III (Principal Financial
Officer) and Director
/s/ R. Gene Smith Vice Chairman of the November 21, 1997
- ----------------------------- and Director
R. Gene Smith
8
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Exhibit 5
November 21, 1997
Securities and Exchange Commission
Division of Corporation Finance
450 Fifth Street, N.W.
Judiciary Plaza
Washington, DC 20549
RE: Vencor, Inc. 1997 Stock Option Plan for Non-Employee Directors
--------------------------------------------------------------
Ladies and Gentlemen:
We have acted as legal counsel in connection with the preparation of the
Registration Statement on Form S-8 ("Registration Statement") under the
Securities Act of 1933, as amended covering an aggregate of 200,000 shares of
Common Stock, par value $.25 per share (the "Shares") of Vencor, Inc., a
Delaware corporation (the "Company"), to be issued pursuant to the Vencor, Inc.
1997 Stock Option Plan for Non-Employee Directors (the "Plan").
We have examined and are familiar with the Certificate of Incorporation, as
amended, and the amended and restated By-Laws of the Company, and the various
corporate records and proceedings relating to the proposed issuance of the
Shares. 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 the Shares have been duly
authorized and, when issued and paid for in accordance with the terms of the
Registration Statement and the Plan, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Greenebaum Doll & McDonald PLLC
Greenebaum Doll & McDonald PLLC
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Vencor, Inc. 1997 Stock Option Plan for Non-Employee
Directors 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
November 19, 1997
