<PAGE> 1
As filed with the Securities and Exchange Commission on September 25, 1998
Registration No. 333-___
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
HEALTH CARE AND RETIREMENT CORPORATION
(Exact name of registrant as specified in its charter)
34-1687107
Delaware (I.R.S. Employer
(State of incorporation) Identification Number)
HEALTH CARE AND RETIREMENT CORPORATION
One SeaGate
Toledo, Ohio 43604-2616
(419) 252-5500
(Address of principal executive offices)
HEALTH CARE AND RETIREMENT CORPORATION
AMENDED RESTRICTED STOCK PLAN
(Full title of the Plan)
------------------
R. Jeffrey Bixler Copies to: Mark D. Gerstein
Vice President, General Counsel and Secretary Latham & Watkins
Health Care and Retirement Corporation Sears Tower, Suite 5800
One SeaGate Chicago, Illinois 60606
Toledo, Ohio 43604-2616 (312) 876-7700
(419) 252-5500 Counsel to Registrant
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Title of each class of Amount Proposed maximum Proposed maximum Amount of
securities to be registered to be registered offering price per aggregate offering registration fee
share (1) price
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 337,750 Shares $26.84 $9,065,210 $2,674.24
per share
===========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h), the proposed maximum offering price per share is
based upon the average of the high and low prices reported on the New York
Stock Exchange for the registrant's common stock on September 18, 1998,
which was $26.84 per share.
================================================================================
<PAGE> 2
PROSPECTUS
337,750 Shares
HEALTH CARE AND RETIREMENT CORPORATION
Common Stock
This Prospectus relates to the offering by certain employees,
officers and directors of Health Care and Retirement Corporation (the "Company"
or "HCR") of 337,750 shares of common stock, par value $.01 per share, of the
Company (the "Common Stock"). This Prospectus will be to effect resales of the
Common Stock used by persons who are "affiliates" (as that term is defined under
the Securities Act of 1933, as amended) of the Company as well as persons who
are not affiliates of the Company. See "Selling Stockholders." The Company will
not receive any proceeds from the sale of Common Stock by selling stockholders.
The Company's Common Stock is listed on the New York Stock
Exchange under the symbol "HCR." On September 18, 1998, the last reported sale
price of the Company's Common Stock was $26.84 per share.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------
No person has been authorized to give any information or make
any representation other than those contained in this Prospectus (including
material incorporated by reference therein) and, if given or made, any such
information or representation must not be relied upon as having been authorized
by the Company, the selling stockholders or by any other person deemed to be an
underwriter. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create an implication that there has
been no change in the affairs of the Company since the date hereof. This
Prospectus does not constitute an offer or solicitation by anyone in any
jurisdiction in which such offer or solicitation is not authorized or in which
the person making such offer or solicitation is not qualified to do so or to
anyone to whom it is unlawful to make such offer or solicitation.
The date of this Prospectus is September 25, 1998.
2
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the Commission
at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the Commission's regional offices at Seven World Trade Center, 13th
Floor, New York, New York 10048 and Northwest Atrium Center, 500 Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can also be
obtained at prescribed rates from the Public Reference Section of the Commission
at its principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission also maintains an Internet site at http://www.sec.gov that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. Such reports, proxy
statements and other information of the Company should also be available at the
offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
The Company has filed with the Commission a Registration
Statement on Form S-8 (including all amendments thereto, the "Registration
Statement") under the Securities Act of 1933 (the "Securities Act") with respect
to the Common Stock offered hereby. As permitted by the rules and regulations of
the Commission, this Prospectus does not contain all the information set forth
in the Registration Statement and the exhibits thereto and to which reference is
hereby made.
TABLE OF CONTENTS
Incorporation of Certain Documents by Reference..........................4
The Company..............................................................4
Selling Stockholders.....................................................5
Use of Proceeds..........................................................7
Plan of Distribution.....................................................7
Legal Matters............................................................8
Experts..................................................................8
Forward-Looking Statements...............................................8
SEC Position On Indemnification..........................................8
3
<PAGE> 4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company with
the Commission and are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
(2) the Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31,1998 and June 30, 1998;
(3) the Company's Current Report on Form 8-K filed on June 16,
1998;
(4) the Company's Registration Statement on Form S-4 (Registration
Statement No. 333-61677) filed on August 17, 1998;
(5) all other reports and subsequent reports filed pursuant to
Section 13(a) or 15(d) of the Exchange Act; and
(6) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1, filed on August
30, 1991 (Registration Statement No. 33-42535), including
any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Prospectus 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 Prospectus and
to be part hereof from the date of filing such documents. Any statement
contained in a document incorporated by reference or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein, or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
A copy of the documents incorporated by reference (other than
exhibits thereto) will be forwarded without charge to each person to whom a copy
of this Prospectus is delivered, upon such person's written or oral request to
Health Care and Retirement Corporation, Attention: Secretary, One SeaGate,
Toledo, Ohio 43604-2616, telephone number (419) 252-5500.
THE COMPANY
The Company, through its wholly owned subsidiaries, provides a
range of health care services, including long-term care, subacute medical care,
rehabilitation therapy, home health care, pharmacy services and management
services for subacute care, rehabilitation therapy, vision care and eye surgery.
The principal executive offices of the Company are located at
One SeaGate, Toledo, Ohio 43604-2616. The telephone number is (419) 252-5500.
4
<PAGE> 5
SELLING STOCKHOLDERS
This Prospectus covers possible sales by affiliates and non-
affiliates of the Company (as well as unnamed non-affiliates, each of whom may
sell less than 1,000 shares of Common Stock) (collectively, the "Selling
Stockholders") of shares they acquired in connection with their employment with
the Company pursuant to grants under the Health Care and Retirement Corporation
Amended Restricted Stock Plan. The name of each Selling Stockholder who may
offer for sale 1000 shares or more of Common Stock in the aggregate from time to
time is listed below, along with the relationship of such Stockholder with the
Company and/or Health Care and Retirement Corporation of America ("HCRA"), a
subsidiary of the Company, the number of shares of Common Stock owned by them
prior to the offering, the number of shares that such stockholder may offer for
sale hereby and the number and percentage of shares that such stockholder would
own after the sale of all shares offered hereby. The stockholders listed below
have sole voting and investment powers with respect to the shares. Their
addresses are in care of the Company.
<TABLE>
<CAPTION>
Shares Owned
After
Shares Owned Shares Offering
Name Relationship Prior to Offering Offered Hereby Number Percent
- ---- ------------ ----------------- -------------- ------ -------
<S> <C> <C> <C> <C> <C>
Paul A. Ormond Chairman of the Board, 2,559,891(1) 150,000 2,409,891 5.2%
President and Chief
Executive Officer of
HCR and President and
Chief Executive Officer
of HCRA
M. Keith Weikel Senior Executive Vice 693,753(2) 40,000 653,753 1.4
President and Chief
Operating Officer of HCR
and HCRA
Geoffrey G. Meyers Executive Vice 514,758(3) 30,000 484,758 1.1
President, Chief
Financial Officer and
Treasurer of HCR and
Executive Vice President
and Chief Financial
Officer of HCRA
R. Jeffrey Bixler Vice President, General 157,774(4) 20,000 137,774 *
Counsel and Secretary
of HCR and HCRA
Paul G. Sieben Vice President and 152,328(5) 7,500 144,828 *
Director of Development
and Construction of HCR
and HCRA
Wade B. O'Brian Vice President and 108,742(6) 7,500 101,242 *
Director of Human
Resources and Labor
Relations of HCR and
HCRA
Jeffrey W. Ferguson Vice President and 99,997(7) 7,500 92,497 *
General Manager of
Midwest Division of HCR
and HCRA, Vice
President and Director
of Marketing of HCR and
HCRA since September
1995
</TABLE>
5
<PAGE> 6
<TABLE>
<CAPTION>
Shares Owned
After
Shares Owned Shares Offering
Name Relationship Prior to Offering Offered Hereby Number Percent
- ---- ------------ ----------------- -------------- ------ -------
<S> <C> <C> <C> <C> <C>
Spencer C. Moler Vice President and 42,148(8) 5,000 37,148 *
Controller of HCR and
Controller and
Treasurer of HCRA
William H. Kinschner Vice President and 151,256(9) 6,000 146,256 *
Director of Management
Support Services of HCR
Nancy A. Edwards Vice President and 43,058(10) 7,500 35,558 *
General Manager of
Central Division of HCR
and HCRA
F. Joseph Schmitt Vice President and 28,702(11) 7,500 21,202 *
General Manager of
Southern Division of
HCR and HCRA
J. Susan Hines Vice President and 31,468(12) 5,000 26,468 *
Director of Medical
Specialty Programs of
HCR and HCRA since
December 1996, Vice
President and Director
of Clinical Services
and Specialty Programs
of HCR and HCRA from
May 1993 to December 1996
Barry A. Lazarus Vice President and 15,700(13) 5,000 10,700 *
Director of Reimbursement
of HCR and HCRA
Joyce C. Smith Vice President and 9,895(14) 5,000 4,895 *
Director of Professional
Services of HCR and HCRA
John Graham Vice President, Director 14,938(15) 1,500 13,438 *
of Rehabilitation Services
of HCR and HCRA since
August 1998 and Assistant
Vice President, Director of
Rehabilitation Services of
HCRA prior to August 1998
Deborah Workman Vice President, Director 1,500 1,500 0 *
of Information Services of
HCR and HCRA since May 1998
and Assistant Vice President,
Director of Information
Services of HCRA prior to
May 1998
Doug A. Haag Treasurer of HCR since 9,925(16) 1,500 8,425 *
August 1998 and Assistant
Treasurer of HCR prior to
August 1998
John Remenar Vice President, Director 22,584(17) 1,500 21,084 *
of Financial Services of
HCR and HCRA since August
1998 and Assistant Vice
President, Director of
Financial Services of HCRA
prior to August 1998
Bill Chenevert Vice President, Director 18,191(18) 1,000 17,191 *
of Operations Support of
HCR and HCRA since August
1998 and Director of
Operations Support of HCRA
prior to August 1998
David Gehrich Director of Tax of HCRA 7,204(19) 1,000 6,204 *
Frank Alcorn Director of Internal Audit 2,778 1,000 1,778 *
& Risk Management of HCRA
</TABLE>
6
<PAGE> 7
<TABLE>
<CAPTION>
Shares Owned
After
Shares Owned Shares Offering
Name Relationship Prior to Offering Offered Hereby Number Percent
- ---- ------------ ----------------- -------------- ------ -------
<S> <C> <C> <C> <C> <C>
James Millspaugh Assistant Vice President, 1,728 1,000 728 *
Director of Human
Resources Operations
Support of HCRA
Gordon Ochs Regional Manager of HCRA 7,225(20) 1,000 6,225 *
William Adams Regional Manager of HCRA 1,000 1,000 0 *
William Morrison Regional Manager of HCRA 1,000 1,000 0 *
Alan Isaacson Regional Manager of HCRA 1,000 1,000 0 *
Kenneth Heitkamp Regional Manager of HCRA 1,000 1,000 0 *
Sherrian Wood Regional Manager of HCRA 17,116(21) 1,000 16,116 *
Lynn Hood Regional Manager of HCRA 3,832(22) 1,000 2,832 *
Linda Bair Regional Manager of HCRA 5,500(23) 1,000 4,500 *
Karen Forrest Regional Manager of HCRA 9,762(24) 1,000 8,762 *
Susan Oginsky Regional Manager of HCRA 1,100 1,000 100 *
Sally Gates Regional Manager of HCRA 3,000(25) 1,000 2,000 *
Cyndi Taplin Regional Manager of HCRA 2,220(26) 1,000 1,220 *
Julie Musiol Senior Administrator of HCRA 1,872(27) 1,000 872 *
Sherry Reid Director of Alzheimer 7,780(28) 1,000 6,780 *
Program Development of HCRA
Bruce Schroeder Director of Operations 6,347(29) 1,000 5,347 *
Support for Home Health of
HCRA
Terrie Restivo-Mock Legal Counsel II of HCRA 1,510 1,000 510 *
Frank Jannazo Director of Ancillary 3,986(30) 1,000 2,986 *
Services Management of HCRA
Martin Allen Assistant Vice President, 2,203(31) 1,000 1,203 *
Director of Reimbursement
Services of HCRA
David Roth Director of Planning and 2,815 1,000 1,815 *
Budgeting of HCRA
Ann Otley Manager Corporate Benefits 9,501(32) 1,000 8,501 *
of HCRA
Douglas Crail Senior Manager Networking 2,964(33) 1,000 1,964 *
of HCRA
Kenneth McManis Manager of Construction 2,660 1,000 1,660 *
of HCRA
Richard Nolen Manager of Design of HCRA 8,736(34) 1,000 7,736 *
</TABLE>
- ----------------------
(1) Includes 1,829,320 shares subject to options exercisable within 60 days.
(2) Includes 506,394 shares subject to options exercisable within 60 days.
(3) Includes 389,348 shares subject to options exercisable within 60 days.
(4) Includes 124,820 shares subject to options exercisable within 60 days.
(5) Includes 66,001 shares subject to options exercisable within 60 days.
(6) Includes 80,510 shares subject to options exercisable within 60 days.
(7) Includes 65,836 shares subject to options exercisable within 60 days.
(8) Includes 24,539 shares subject to options exercisable within 60 days.
(9) Includes 96,929 shares subject to options exercisable within 60 days.
(10) Includes 32,250 shares subject to options exercisable within 60 days.
(11) Includes 20,850 shares subject to options exercisable within 60 days.
(12) Includes 19,800 shares subject to options exercisable within 60 days.
(13) Includes 10,500 shares subject to options exercisable within 60 days.
(14) Includes 4,125 shares subject to options exercisable within 60 days.
(15) Includes 12,700 shares subject to options exercisable within 60 days.
(16) Includes 6,925 shares subject to options exercisable within 60 days.
(17) Includes 20,050 shares subject to options exercisable within 60 days.
(18) Includes 14,650 shares subject to options exercisable within 60 days.
(19) Includes 2,300 shares subject to options exercisable within 60 days.
(20) Includes 6,225 shares subject to options exercisable within 60 days.
(21) Includes 14,350 shares subject to options exercisable within 60 days.
(22) Includes 2,700 shares subject to options exercisable within 60 days.
(23) Includes 4,500 shares subject to options exercisable within 60 days.
(24) Includes 8,550 shares subject to options exercisable within 60 days.
(25) Includes 1,500 shares subject to options exercisable within 60 days.
(26) Includes 1,125 shares subject to options exercisable within 60 days.
(27) Includes 525 shares subject to options exercisable within 60 days.
(28) Includes 6,250 shares subject to options exercisable within 60 days.
(29) Includes 1,850 shares subject to options exercisable within 60 days.
(30) Includes 1,400 shares subject to options exercisable within 60 days.
(31) Includes 750 shares subject to options exercisable within 60 days.
(32) Includes 6,400 shares subject to options exercisable within 60 days.
(33) Includes 1,575 shares subject to options exercisable within 60 days.
(34) Includes 3,750 shares subject to options exercisable within 60 days.
*Amount represents less than 1%.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the shares offered
hereby. All of the proceeds will be received by the selling stockholders. See
"Selling Stockholders."
PLAN OF DISTRIBUTION
The Selling Stockholders may sell shares of Common Stock in
any of the following ways: (i) through dealers; (ii) through agents; or (iii)
directly to one or more purchasers. The distribution of the shares of Common
Stock may be effected from time to time in one or more transactions (which may
involve crosses or block transactions) (A) on the New York Stock Exchange (or on
such other national stock exchanges on which the shares of Common Stock may be
traded from time to time) in transactions which may include special offerings,
exchange distributions and/or secondary distributions pursuant to and in
accordance with the rules of such exchange, (B) in the over-the-counter market,
or (C) in transactions other than on an exchange or in the over-the-counter
market, or in a combination of such transactions. Any such transaction may be
effected at market prices prevailing at the time of sale, at prices related to
such prevailing market prices, at negotiated prices or at fixed prices. The
Selling Stockholders may effect such transactions by selling shares of Common
Stock to or through broker-dealers, and such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholders and/or commissions from purchasers of shares of Common
Stock for whom they may act as agent. All brokers' commissions, concessions or
discounts will be paid by the Selling Stockholders. The Selling Stockholders and
any broker-dealers or agents that participate in the distribution of shares of
Common Stock by them might be deemed to be "underwriters," and any discounts,
commissions or concessions received by any such broker-dealers or agents might
be deemed to be underwriting discounts and commissions, under the Securities
Act.
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<PAGE> 8
All expenses of registration incurred in connection with this
offering are being borne by the Company, but all selling and other expenses
incurred by the Selling Stockholders will be borne by such Selling Stockholders.
LEGAL MATTERS
The legality of the shares of Common Stock offered hereby will
be passed upon for the Company by Latham & Watkins, Chicago, Illinois. John J.
Clair, Jr., a partner in Latham & Watkins, is a director of the Company and is
eligible to purchase shares of Common Stock pursuant to options granted to him
pursuant to the Health Care and Retirement Corporation Stock Option Plan for
Outside Directors. For so long as Mr. Clair remains a director of the Company,
he is eligible to receive additional grants of options to purchase shares of
Common Stock.
EXPERTS
The consolidated financial statements of Health Care and
Retirement Corporation appearing in Health Care and Retirement Corporation's
Annual Report (Form 10-K) for the year ended December 31, 1997, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
FORWARD-LOOKING STATEMENTS
This Prospectus contains, or incorporates by reference,
certain statements that may be deemed "forward-looking statements" within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. All statements, other than statements of historical facts, that address
activities, events or developments that the Company intends, expects, projects,
believes or anticipates will or may occur in the future are forward-looking
statements. Such statements are based on certain assumptions and assessments
made by management of the Company in light of its experience and its perception
of historical trends, current conditions, expected future developments and other
factors it believes to be appropriate. The forward-looking statements included
in this Prospectus are also subject to number of material risks and
uncertainties, including but not limited to economic, competitive, governmental
and technological factors affecting the Company's operations, markets, products,
services and prices, and other factors discussed in the Company's filings under
the Securities Act and the Exchange Act. Prospective investors are cautioned
that such forward-looking statements are not guarantees of future performance
and that actual results, developments and business decisions may differ from
those envisaged by such forward-looking statements.
SEC POSITION ON INDEMNIFICATION
Article Eighth of the Certificate of Incorporation, as
amended, of the Company provides, in detail, for the indemnification of
directors, officers and employees of the Company to the fullest extent permitted
under the General Corporation Law of the State of Delaware.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the registrant pursuant to the foregoing provisions, the Company has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
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<PAGE> 9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
John J. Clair, a director and option holder of the registrant.
See "Legal Matters."
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of
Delaware (the "GCL") provides that a Delaware corporation has the power to
indemnify its officers and directors in certain circumstances. Subsection (a) of
the GCL empowers a corporation to indemnify any director or officer, or former
director or officer who was or is a party or is threatened to be made a party of
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 the corporation) against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding provided that such director
or officer acted in good faith and in a manner 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.
Subsection (b) of Section 145 empowers a corporation to
indemnify any officer or director, or former officer or director, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, or suit by or in the right of the corporation to procure a
judgment in its factor by reason of the fact that such person acted in any of
the capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
such action or suit provided that such director or officer acted in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such director or officer shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which action or suit was brought
shall determine that despite the adjudication of liability such director or
officer is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
Section 145 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsections (a) and (b) of Section 145 or in
defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith; that indemnification provided by Section 145
shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled; and that the corporation is empowered to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him or her and incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him, against such liabilities
under Section 145.
Article Eighth of the Certificate of Incorporation, as
amended, of the Company (the "Certificate") provides, in detail, for the
indemnification of directors, officers and employees of the Company to the
fullest extent permitted under the GCL.
Section 102(b)(7) of the GCL enables a Delaware corporation to
provide in its certificate of incorporation for the elimination or limitation of
the personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director. Any such provision
cannot eliminate or limit a director's liability (1) for any breach of the
director's duty of loyalty to the Corporation or its stockholders; (2) for acts
or omissions not in good faith which involve intentional misconduct or a knowing
violation of law; (3) under Section 174 of the GCL (which imposes liability on
directors for unlawful payment of
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<PAGE> 10
dividends or unlawful sock purchase or redemption); or (4) for any transaction
from which the director derived an improper personal benefit. Article Eighth of
the Certificate eliminates the liability of a director of the Company to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director to the full extent permitted by the GCL.
The Company carries policies of insurance which cover the
individual directors and officers of the Company for legal liability and which
would pay on behalf of the Company for expenses of indemnification of directors
and officers in accordance with the Certificate of Incorporation.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the registrant pursuant to the foregoing provisions, the Company has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT NUMBER DESCRIPTION
4.1 Health Care and Retirement Corporation Amended Restricted
Stock Plan (filed on pages A1 to A9 of Health Care and
Retirement's Proxy Statement dated March 25, 1997 in
connection with its Annual Meeting held on May 6, 1997 and
incorporated by reference herein)
*4.2 First Amendment to Health Care and Retirement Corporation
Amended Restricted Stock Plan
*5 Opinion of Latham & Watkins
*23.1 Consent of Independent Auditors
*23.2 Consent of Latham & Watkins (included in opinion filed as
Exhibit 5)
- ----------------------
* Filed herewith
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes to file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement; (1) to include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933; (2) 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 the aggregate, represent a fundamental change in the
information set forth in Registration Statement; (3) that, for the purpose of
determining any liability under the Securities Act of 1933, each 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 (4) 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 Plan; provided,
however, that paragraphs (a)(1) and (a)(2) do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in this Registration Statement.
10
<PAGE> 11
(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 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.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1993 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, 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 Act, and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than 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 against the registrant 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 Act and will be governed by the final adjudication of such
issue.
11
<PAGE> 12
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, there unto
duly authorized, in the City of Toledo, State of Ohio, on September 24, 1998.
HEALTH CARE AND
RETIREMENT CORPORATION
By: /s/ R. Jeffrey Bixler
------------------------------------
R. Jeffrey Bixler, Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ John J. Clair )
- -------------------- Director )
John J. Clair )
)
/s/ Joseph H. Lemieux )
- -------------------- Director )
Joseph H. Lemieux ) September 24, 1998
)
/s/ Geoffrey G. Meyers )
- -------------------- Executive Vice President, Chief Financial )
Geoffrey G. Meyers Officer and Treasurer (Principal Financial )
Officer) )
/s/ Spencer C. Moler )
- -------------------- Vice President and Controller (Principal )
Spencer C. Moler Accounting Officer) )
)
/s/ Paul A. Ormond
- -------------------- Chairman of the Board, President and Chief )
Paul A. Ormond Executive Officer (Principal Executive )
Officer) )
/s/ Robert G. Siefers )
- -------------------- Director )
Robert G. Siefers )
)
/s/ M. Keith Weikel )
- -------------------- Senior Executive Vice President and Chief )
M. Keith Weikel Operating Officer; Director )
)
/s/ Thomas L. Young )
- -------------------- Director )
Thomas L. Young )
</TABLE>
<PAGE> 13
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
4.1 Health Care and Retirement Corporation Amended Restricted Stock Plan (filed
on pages A1 to A9 of Health Care and Retirement's Proxy Statement dated March
25, 1997 in connection with its Annual Meeting held on May 6, 1997 and
incorporated by reference herein)
*4.2 First Amendment to Health Care and Retirement Corporation Amended Restricted
Stock Plan
*5 Opinion of Latham & Watkins
*23.1 Consent of Independent Auditors
*23.2 Consent of Latham & Watkins (included in opinion file as Exhibit 5)
</TABLE>
- ----------------------
* Filed herewith
<PAGE> 1
Exhibit 4.2
FIRST AMENDMENT TO
HEALTH CARE AND RETIREMENT CORPORATION
AMENDED RESTRICTED STOCK PLAN
THIS FIRST AMENDMENT TO THE HEALTH CARE AND RETIREMENT CORPORATION AMENDED
RESTRICTED STOCK PLAN, dated as of , 1998, is made and
adopted by HEALTH CARE AND RETIREMENT CORPORATION, a Delaware corporation (the
"Company"). Capitalized terms used but not otherwise defined herein shall have
the respective meanings ascribed to such terms in the Plan (as defined below).
WHEREAS, the Company has adopted the Health Care and Retirement Corporation
Amended Restricted Stock Plan (the "Plan") for the benefit of its employees and
officers;
WHEREAS, effective October 14, 1991, the Company adopted the Health Care
and Retirement Corporation Restricted Stock Plan and, effective May 6, 1997, the
Company adopted the Health Care and Retirement Corporation Amended Restricted
Stock Plan;
WHEREAS, the Company desires to amend the Plan so as to increase the number
of shares reserved for issuance thereunder; and
WHEREAS, this First Amendment was duly adopted by a resolution of the Board
of Directors of the Company dated as of August , 1998, subject to approval
thereof by the Company's shareholders.
NOW THEREFORE, in consideration of the foregoing, the Company hereby amends
the Plan as follows:
1. Section 2.1 of the Plan is hereby amended by deleting the second
sentence of such Section in its entirety and replacing it with the
following sentence:
"The aggregate number of such shares which may be issued as Restricted
Stock shall not exceed 1,892,866."
2. This First Amendment shall be and is hereby incorporated in and forms
a part of the Plan.
3. This First Amendment shall be effective as of the effective time of
the merger of Manor Care, Inc. ("Manor Care") with and into Catera
Acquisition Corp. ("Merger Sub"), a wholly owned subsidiary of the
Company, with Manor Care being the surviving corporation, pursuant
to that certain Amended and Restated Agreement and Plan of Merger
dated as of June 10, 1998 by and among Manor Care, Merger Sub and
the Company.
4. Except as set forth herein, the Plan shall remain in full force and
effect.
IN WITNESS WHEREOF, the Company has caused this amendment to the Plan to be
executed by its duly authorized officer as of August 13, 1998.
HEALTH CARE AND
RETIREMENT CORPORATION
By: /s/ R. Jeffrey Bixler
--------------------------------
Title: Vice President and Secretary
1
<PAGE> 2
I hereby certify that the foregoing amendment to the Plan was duly approved
by the shareholders of Health Care and Retirement Corporation on September 24,
1998.
Executed on this 24th day of September, 1998.
By: /s/ R. Jeffrey Bixler
-------------------------------
Title: Vice President and Secretary
H-2
<PAGE> 1
[LATHAM & WATKINS LETTERHEAD]
September 24, 1998
Health Care and Retirement Corporation
One SeaGate
Toledo, Ohio 43604-2616
Re: Registration Statement on Form S-8
Health Care and Retirement Corporation
Amended Restricted Stock Plan
Ladies and Gentlemen:
We have acted as your special counsel in connection with the
above-captioned Registration Statement (the "Registration Statement") with
respect to the offer and sale by certain selling stockholders of up to 337,750
shares (the "Shares") of common stock of Health Care and Retirement Corporation,
par value $.01 per share, pursuant to the Health Care and Retirement Corporation
Amended Restricted Stock Plan.
We are familiar with the proceedings taken and proposed to be
taken by you in connection with the authorization, issuance and sale of the
Shares, and for the purposes of this opinion, have assumed such proceedings will
be timely completed in the manner presently proposed. In addition, we have made
such legal and factual examinations and inquires, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of all documents submitted to us
as copies.
<PAGE> 2
LATHAM & WATKINS
Health Care and Retirement Corporation
September 24, 1998
Page 2
We are opining herein as to the effect on the subject
transaction of the General Corporation Law of the State of Delaware, and we
express no opinion with respect to the applicability thereto, or the effect
thereon, of any other laws.
Subject to the foregoing, it is our opinion that the Shares
have been duly authorized and, upon issuance, delivery and payment therefor in
the manner contemplated by the Registration Statement, will be validly issued,
fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Latham & Watkins
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) and related Prospectuses pertaining to the
Health Care and Retirement Corporation Amended Restricted Stock Plan and to the
incorporation by reference therein of our report dated January 27, 1998 with
respect to the consolidated financial statements and schedule of Health Care and
Retirement Corporation included in its Annual Report (Form 10-K) for the year
ended December 31, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Toledo, Ohio
September 23, 1998
