SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Vencor, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 61-1055020
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(State of incorporation or organization) (IRS Employer
Identification No.)
3300 AEGON Center; 400 West Market Street
Louisville, Kentucky 40202
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(Address of principal executive offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective pursuant Exchange Act and is effective pursuant
to General Instruction A.(c), please to General Instruction A.(d), please
check the following box.|X| check the following box.|_|
Securities Act registration statement file number to which this form
relates:_____________________
(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
Preferred Stock Purchase Rights New York Stock Exchange
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Securities to be registered pursuant to Section 12(g) of the Act:
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(Title of Class)
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Item 1. Description of Registrant's Securities to be
Registered.
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On February 1, 1998, Vencor, Inc. a Delaware corporation (the
"Company"), amended its Rights Agreement, dated as of July 20, 1993 (as amended,
the "Rights Agreement"), between the Company and National City Bank (the "Rights
Agent") as amended by the First Amendment to Rights Agreement, dated as of
August 11, 1995 by adoption of the Second Amendment to Rights Agreement, dated
as of February 1, 1998 (the "Second Amendment"). Capitalized terms used but not
defined herein shall have the meaning ascribed to such terms in the Rights
Agreement.
The Second Amendment decreased the percentage of securities at which a
person will be deemed to be an Acquiring Person from 15% to 9.9% subject to an
exception for any person who owns more than 9.9% as of February 1, 1998. The
Second Amendment also made conforming changes.
The foregoing description is qualified in its entirety by reference to
the Second Amendment which is attached as an exhibit hereto and is incorporated
herein by reference.
Item 2. Exhibits.
Exhibit No. Description
(1) Second Amendment to Rights Agreement, dated
as of February 1, 1998, between the Company
and the Rights Agent.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
VENCOR, INC.
Date: February 1, 1998 By:/s/ Jill L. Force
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Name: Jill L. Force
Title: Senior Vice President
and General Counsel
Exhibit 1
SECOND AMENDMENT TO RIGHTS AGREEMENT
This Second Amendment (this "Amendment") dated as of February 1, 1998
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")
and amended by the First Amendment to Rights Agreement, dated as of August 11,
1995 (as so amended, the "Rights Agreement"); all capitalized terms not defined
herein shall have the meanings ascribed to such terms 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 Common Stock
outstanding as of the close of business on August 1, 1993; and
WHEREAS, each currently issued and outstanding share of the 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 Board of Directors of the Company has deemed it necessary
and desirable to amend the Rights Agreement as set forth in 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. Section 1(a). The definition of "Acquiring Person" set forth in
Section 1(a) of the Rights Agreement is
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hereby amended by deleting it in its entirety and amending it to read as
follows:
"'Acquiring Person' shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner
of 9.9% or more of the then outstanding shares of Common Stock (other than
as a result of a Permitted Offer (as hereinafter defined)) or becomes such
a Beneficial Owner at any time after the date hereof, whether or not such
Person continues to be the Beneficial Owner of 9.9% or more of the then
outstanding shares of Common Stock. Notwithstanding the foregoing, (A) the
term 'acquiring person' shall not include (i) the Corporation, (ii) any
Subsidiary of the Corporation, (iii) any employee benefit plan of the
Corporation or of any Subsidiary of the Corporation, (iv) any Person or
entity organized, appointed or established by the Corporation for or
pursuant to the terms of any such plan, (v) any Person who or which,
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 9.9% or more of the then outstanding shares of Common
Stock as a result of the acquisition of shares of Common Stock directly
from the Corporation or (vi) any Person who or which, together with all
Affiliates and Associates of such Person, is the Beneficial Owner of 9.9%
or more of the outstanding shares of Common Stock on February 1, 1998,
until such time hereafter as any such Person shall become the Beneficial
Owner of any additional shares of Common Stock (other than by means of a
stock dividend or stock split); provided, however, that this clause (vi)
shall cease to apply to any Person who is the Beneficial Owner of 9.9% or
more of the outstanding shares of Common Stock on February 1, 1998, but who
shall subsequently become, for any reason, including as a result of the
issuance by the Company of additional shares of Common Stock, the
Beneficial Owner of less than 9.9% of the outstanding shares of Common
Stock and (B) no Person shall be deemed to be an 'Acquiring Person' either
(x) as a result of the acquisition of shares of Common Stock by the
Corporation which, by reducing the number of shares of Common Stock
outstanding, increases the proportional number of shares beneficially owned
by such Person; except that if (i) a Person would become an Acquiring
Person (but for the operation of this subclause (x)) as a result of
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the acquisition of shares of Common Stock by the Corporation and (ii)
after such share acquisition by the Corporation, such Person becomes
the Beneficial Owner of any additional shares of Common Stock, then
such Person shall be deemed an Acquiring Person or (y) if (i) within 5
days after such Person would otherwise have become an Acquiring Person
(but for the operation of this subclause (y)), such Person notifies the
Board of Directors that such Person did so inadvertently and (ii)
within 2 days after such notification, such Person is the Beneficial
Owner of less than 9.9% of the outstanding shares of Common Stock."
2. Section 3(d). Section 3(d) of the Rights Agreement is hereby amended
by deleting the legend set forth in Section 3(d) in its entirety and amending it
to read as follows:
"This certificate also evidences and entitles the holder hereof to
certain rights as set forth in a Rights Agreement between Vencor,
Incorporated (now known as Vencor, Inc.) and National City Bank, as Rights
Agent, dated as of July 20, 1993 amended by the First Amendment to Rights
Agreement; dated as of August 11, 1995 and the Second Amendment to Rights
Agreement, dated as of February 1, 1998 (as so amended, the "Rights
Agreement"), the terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal executive offices of
Vencor, Inc. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and will
no longer be evidenced by this certificate. Vencor, Inc. will mail to the
holder of this certificate a copy of the Rights Agreement without charge
after receipt of a written request therefor. Under certain circumstances
set forth in the Rights Agreement, Rights issued to, or held by any Person
who is or becomes an Acquiring Person or an Affiliate or Associate thereof
(as defined in the Rights Agreement) and certain related persons, whether
currently held by or on behalf of such Person or by any subsequent holder,
may become null and void."
3. Section 23(a)(ii). Section 23(a)(ii) of the Rights Agreement is
hereby amended by deleting the reference to "15%" therein and substituting
"9.9%" therefor.
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4. Section 27. Section 27 of the Rights Agreement is hereby amended by
deleting the last sentence thereof in its entirety.
5. Exhibit II to Rights Agreement. Exhibit II to the Rights Agreement
shall be deleted in its entirety and replaced with a new Exhibit II, attached to
this Amendment as Annex A.
6. 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.
7. 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.
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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: /s/ Joseph L. Landenwich By: /s/ Jill L. Force
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Name: Joseph L. Landenwich Name: Jill L. Force
Title: Secretary Title: Senior Vice President and
General Counsel
NATIONAL CITY BANK, AS RIGHTS AGENT
Attest:
By: /s/ David B. Davis By: /s/ Sherry L. Damore
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Name: David B. Davis Name: Sherry L. Damore
Title: Vice President 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 (NOW KNOWN AS VENCOR, INC.) 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 as
amended by the First Amendment (as defined herein) and the Second Amendment (as
defined herein) (as so amended, 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.
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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 9.9% or more of the voting power of all outstanding voting
securities of 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.
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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 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
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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 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 9.9% 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.
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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. 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 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,
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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 (the "SEC") as
Exhibit II to Form 8-A/A on August 11, 1995. The First Amendment amended Exhibit
II of the Rights Agreement ("Exhibit II") to correct and clarify any ambiguities
contained in the Summary of Rights to Purchase Series A Participating Preferred
Stock (this "Summary").
As of February 1, 1998, the Rights Agreement was amended (the "Second
Amendment") and filed with the SEC as Exhibit 1 to the Form 8-A/A of the Company
on February 1, 1998. The Second Amendment lowered the Acquiring Person threshold
to 9.9% (other than for persons already owning
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9.9%) clarified certain ambiguities contained in the Rights Agreement and made
conforming changes to this Summary.
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, the First Amendment and the Second Amendment. A copy of the Rights
Agreement, the First Amendment and the Second Amendment are available free of
charge from the Company by written request, Vencor, Inc., 3300 Capital Holding
Center, 400 West Market Street, Louisville, Kentucky 40202, Attention: Corporate
Secretary. This summary description of the Rights, the Rights Agreement, the
Second 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.
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