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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
SCHEDULE 14D-1
Tender Offer Statement Pursuant to
Section 14(d)(1) of the Securities Exchange Act of 1934
(Amendment No. 2)
THERATX, INCORPORATED
(Name of Subject Company)
VENCOR, INC.
PEACH ACQUISITION CORP.
(Bidders)
COMMON STOCK, PAR VALUE $.001 PER SHARE
(Title of Class of Securities)
883384109
(CUSIP Number of Class of Securities)
Jill L. Force
Senior Vice President,
Secretary and General Counsel
Vencor, Inc.
3300 Providian Center
400 West Market Street
Louisville, Kentucky 40202
(502) 596-7300
(Name, Address, and Telephone Numbers of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
Copy to:
Joseph B. Frumkin, Esq.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
(212) 558-4000
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<PAGE>
This Amendment No. 2 (this "Amendment") is filed to supplement and
amend the information set forth in the Tender Offer Statement on Schedule 14D-1
filed by Vencor, Inc. ("Vencor"), and Peach Acquisition Corp. (the "Purchaser")
on February 14, 1997, as amended by Amendment No. 1 to such Schedule dated
February 24, 1997 (as amended, the "Schedule 14D-1"), with respect to shares of
Common Stock, par value $.001 per share ("Shares"), of TheraTx, Incorporated
(the "Company"). Unless otherwise indicated, the capitalized terms used herein
shall have the meanings specified in the Schedule 14D-1 including the Offer to
Purchase (the "Offer to Purchase") attached as Exhibit (a)(1) thereto.
Item 3. Past Contracts, Transactions or Negotiations with the Subject Company.
(b) The Company, Vencor and the Purchaser executed Amendment No. 1
to Agreement and Plan of Merger, dated as of February 28, 1997 (the "Merger
Amendment"), amending the Merger Agreement. The Merger Amendment is described
below under Item 7 and is qualified in its entirety by the full text of the
Merger Amendment which is attached hereto as Exhibit (c)(3) and is incorporated
herein by reference.
Item 5. Purpose of the Tender Offer and Plans or Proposals of the Bidder.
Vencor has been informed by the Company that the Company has entered
into amendments to the outstanding Warrant agreements with each of the holders
of the Warrants to provide that, upon a merger of the Company, the holders of
the Warrants will be entitled to receive the number of shares, securities or
other property that they would have received if the Warrant had been exercised
immediately prior to such merger. The Warrant Reclassification will therefore be
unnecessary.
Item 7. Contracts, Arrangements, Understandings or Relationships with Respect
to the Subject Company's Securities.
The Merger Amendment amends the Merger Agreement to provide that at the
Effective Time, the Options held by (1) John A. Bardis, Bret W. Jorgensen,
Donald R. Myll, Louis E. Hallman, III, Laura E. Cayce, Jonathan H. Glenn, Craig
R. Reamsnyder and B. Wayne Clark, (2) any individual who holds, in the
aggregate, Options to purchase no more than 1,500 Shares and (3) such other
individuals who the Company and Vencor mutually agree shall be subject to such
treatment, shall have their Options cancelled and the holder thereof shall be
entitled to a cash payment equal to the product of (x) the amount, if any, by
which the Merger Consideration exceeds the exercise price per Share subject to
such Option and (y) the number of Shares issuable pursuant to the unexercised
portion of such Option, less any required withholding of taxes.
The Merger Amendment further provides that, at the Effective Time,
except for any Options referred to above, each outstanding Option shall be
converted into an option (a "Replacement Option") to acquire, on the same terms
and conditions as were applicable under such Option, a number of shares of
Vencor Common Stock equal to (a) the number of Shares subject to the Option,
multiplied by (b)(i) the Merger Consideration, divided by (ii) the average price
of Vencor Common Stock on the trading day immediately prior to the Effective
Time, at an exercise price per share equal to (y) the aggregate exercise price
for the Shares which were purchasable pursuant to such Option divided by (z) the
number of shares of Vencor Common Stock subject to such Replacement Option. The
foregoing description is qualified in its entirety by the full text of the
Merger Amendment.
In addition, the information set forth in Item 5 above is incorporated
in this Item 7 herein by reference.
<PAGE>
Item 10. Additional Information.
On March 1, 1997, the waiting period under the HSR Act with respect to
the Offer and the Merger expired at 11:59 p.m., New York City time.
Item 11. Material to be filed as Exhibits.
The list of exhibits in the Schedule 14D-1 is hereby amended and
supplemented by adding the following exhibit:
(c)(3) Amendment No. 1 to Agreement and Plan of Merger, dated as of
February 28, 1997, to the Merger Agreement, dated as of
February 9, 1997, among the Company, Offeror and the Purchaser.
<PAGE>
SIGNATURE
After due inquiry and to the best of our knowledge and belief, we
certify that the information set forth in this Amendment is true, complete and
correct.
Dated: March 3, 1997
VENCOR, INC.
By:/s/ W. Bruce Lunsford
Name: W. Bruce Lunsford
Title: Chairman of the Board,
President and Chief
Executive Officer
PEACH ACQUISITION CORP.
By:/s/ W. Bruce Lunsford
Name: W. Bruce Lunsford
Title: Chairman of the Board,
President and Chief
Executive Officer
Exhibit (c)(3)
Amendment No. 1 to Agreement and Plan of Merger
AMENDMENT NO. 1, dated as of February 28, 1997 (this "Amendment"), to
the Agreement and Plan of Merger, dated as of February 9, 1997 (the "Merger
Agreement"), by and between TheraTx, Incorporated, a Delaware corporation (the
"Company"), Vencor, Inc., a Delaware corporation ("Purchaser") and Peach
Acquisition Corp, a Delaware corporation and a wholly-owned subsidiary of
Purchaser ("Merger Sub").
W I T N E S S E T H:
WHEREAS, the Company, Purchaser and Merger Sub desire to amend the
Merger Agreement as set forth herein; and
WHEREAS, Section 10.3 of the Merger Agreement provides that, at any
time prior to the Effective Time, the Company, Purchaser and Merger Sub may
amend the Merger Agreement, by written agreement executed and delivered by duly
authorized officers of the Company, Purchaser and Merger Sub, respectively;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto agree as follows:
ARTICLE I
Amendment to the Merger Agreement
1.1 Stock Plans and Options. Section 7.8 of the Merger Agreement is
hereby amended by deleting the current text thereof in its entirety and
inserting in lieu thereof the following:
7.8. Stock Plans and Options. (a) Except as provided in
Section 7.8(b), at the Effective Time, each outstanding option to
purchase Shares under the Stock Plans, other than any option granted
under the Company's Employee Stock Purchase Plan (collectively, the
"Options"), whether vested or unvested, shall be converted into an
option to acquire, on the same terms and conditions as were applicable
under such Option, the number of shares of Common Stock, par value
$0.25 per share of Purchaser (the "Purchaser Common Stock") equal to
(a) the number of Shares subject to the Option, multiplied by (b) (i)
the Merger Consideration, divided by (ii) the average of the high and
low price of Purchaser Common Stock on the trading day immediately
preceding the date of the Effective Time as reported in the New York
City edition of The Wall Street Journal (rounded down to the nearest
whole number) (a "Replacement Option"), at an exercise price per share
(rounded up to the nearest whole cent) equal to (y) the aggregate
exercise price for the Shares which were purchasable pursuant to such
Option divided by (z) the number of full shares of Purchaser Common
Stock subject to such Replacement Option in accordance with the
foregoing. At or prior to the Effective Time, the Company shall take
all action necessary with respect to the Stock Plans to permit the
replacement of the outstanding Options by Purchaser pursuant to this
Section 7.8(a) and as soon as practicable after the Effective Time
Purchaser shall use its reasonable best efforts to register under the
Securities Act on Form S-8 or other appropriate form (and use its
reasonable best efforts to maintain the effectiveness thereof) shares
of Purchaser Common Stock issuable pursuant to all Replacement Options.
The Company shall take all action necessary, including obtaining any
required consents from optionees, to provide that following the
Effective Time no participant in any Stock Plan or other plans,
programs or arrangements shall have any right thereunder to acquire
equity securities of the Company, the Surviving Corporation or any
subsidiary thereof and to permit Purchaser to assume the Stock Plans
(other than the Company's Employee Stock Purchase Plan, with respect to
which the Company shall take all action necessary to terminate such
plan immediately prior to the Effective Time). The Company shall
further take all action necessary to amend the Stock Plans, to
eliminate automatic grants or awards thereunder following the Effective
Time. At the Effective Time, Purchaser shall assume the Stock Plans
(other than the Company's Employee Stock Purchase Plan); provided, that
such assumption shall be only in respect of the Replacement Options and
that Purchaser shall have no obligation with respect to any awards
under the Stock Plans other than the Replacement Options or to make any
additional grants or awards under such assumed Stock Plans.
(b) At the Effective Time, each then outstanding Option held
by (i) John A. Bardis, Bret W. Jorgensen, Donald R. Myll, Louis E.
Hallman, III, Laura E. Cayce, Jonathan H. Glenn, Craig R. Reamsnyder
and B. Wayne Clark, (ii) any individual in respect of whom the total
number of Shares subject to all Options held by such individual does
not exceed 1,500 as of the Effective Time, or (iii) any other
individuals who the Company and Purchaser mutually agree shall have
their Options treated in accordance with the terms of this Section
7.8(b), whether vested or unvested, shall be cancelled and the holder
thereof shall be entitled to receive an amount of cash equal to the
product of (x) the amount, if any, by which the Merger Consideration
exceeds the exercise price per Share subject to such Option (whether
vested or unvested) and (y) the number of Shares issuable pursuant to
the unexercised portion of such Option, less any required withholding
of taxes (such amount being hereinafter referred to as the "Option
Consideration"). The Option Consideration shall be paid as soon as
practicable following the Effective Time, but in any event within five
(5) days following the Effective Time. Prior to the Effective Time, the
Company shall take such actions as may be necessary to effectuate the
foregoing, including without limitation obtaining all applicable
consents. The cancellation of an Option in exchange for the Option
Consideration shall be deemed a release of any and all rights the
holder had or may have had in respect of such Option, and any required
consents received from Option holders shall so provide.
ARTICLE II
Miscellaneous
2.1 Definitions. Capitalized terms used in this Amendment and not
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement.
2.2 Entire Agreement; Restatement. Other than as amended by Section
1.1 above, the Merger Agreement shall remain in full force and effect unaffected
hereby. The Merger Agreement, as amended by this Amendment, is hereinafter
referred to as the "Merger Agreement", and the parties hereto hereby agree that
the Merger Agreement may be restated to reflect the amendments provided for in
this Amendment.
2.3 Governing Law. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
2.4 Counterparts. For the convenience of the parties hereto, this
Amendment may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument and all such counterparts shall
together constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Amendment to be executed as of the date first written above.
THERATX, INCORPORATED
By: /s/ John A. Bardis
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Name: John A. Bardis
Title: President & CEO
VENCOR, INC.
By: /s/ James H. Gillenwater, Jr.
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Name: James H. Gillenwater, Jr.
Title: Senior Vice President
PEACH ACQUISITION CORP.
By: /s/ James H. Gillenwater, Jr.
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Name: James H. Gillenwater, Jr.
Title: Senior Vice President
