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As filed with the Securities and Exchange Commission on September 3, 1998
Registration No. 333-57339
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-4/S-8*
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MARINER POST-ACUTE NETWORK, INC.
(FORMERLY PARAGON HEALTH NETWORK, INC.)
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 74-2012902
(State or Other Jurisdiction of (I.R.S.Employer Identification Number)
Incorporation or Organization)
ONE RAVINIA DRIVE
Suite 1500
ATLANTA, GEORGIA 30346
(Address of Principal Executive Offices)(Zip Code)
1995 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN AND
OUTSTANDING OPTIONS OF MARINER HEALTH GROUP, INC. ASSUMED
BY MARINER POST-ACUTE NETWORK, INC. IN CONNECTION WITH MERGER**
(Full Title of the Plan)
SUSAN THOMAS WHITTLE
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
MARINER POST-ACUTE NETWORK, INC.
ONE RAVINIA DRIVE, SUITE 1500
ATLANTA, GA 30346
(Name and Address of Agent for Service)
(678) 443-7000
(Telephone Number, Including Area Code, of Agent for Service)
COPIES OF COMMUNICATIONS TO:
SUSAN THOMAS WHITTLE RICHARD H.MILLER, ESQ.
SENIOR VICE PRESIDENT, GENERAL POWELL,GOLDSTEIN, FRAZER & MURPHY LLP
COUNSEL AND SECRETARY SIXTEENTH FLOOR
MARINER POST-ACUTE NETWORK, INC. 191 PEACHTREE STREET, N.E.
ONE RAVINIA DRIVE ATLANTA, GEORGIA 30303
SUITE 1500
ATLANTA, GA 30346
*Filed as a Post-Effective Amendment on Form S-8 to the above-referenced
Registration Statement pursuant to the provisions of 401(e) promulgated under
the Securities Act of 1933, as amended, and the procedure described herein.
See "Introductory Statement Not Forming Part of Prospectus."
**This Post-Effective Amendment No. 1 to Form S-4/S-8 covers up to 733,500
shares assumed by Mariner Post-Acute Network, Inc. ("MPN") and reserved for
issuance pursuant to an Agreement & Plan of Merger ("Merger Agreement") dated
as of April 13, 1998, among Paragon Health Network, Inc. (predecessor to
MPN), Paragon Acquisition Sub, Inc. ("Merger Sub") and Mariner Health Group,
Inc. ("Mariner"). Under the terms of the Merger Agreement, Merger Sub merged
(the "Merger") with and into Mariner with Mariner surviving the Merger and
continuing as a wholly-owned subsidiary of MPN. In connection with the
aforementioned Merger, MPN assumed (i) options to purchase shares of Mariner
common stock, par value $.01 per share (the "Mariner Common Stock")
outstanding pursuant to Mariner's 1995 Non-Employee Director Stock Option
Plan and (ii) certain options to purchase shares of Mariner Common Stock
outstanding at the time of the aforementioned Merger, as required under the
terms of the Merger Agreement. The 733,500 shares of MPN's common stock, par
value $.01 per share, reserved for issuance were registered in connection
with the original filing of the above-referenced Registration Statement, and,
therefore, no additional fee is required.
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INTRODUCTORY STATEMENT NOT FORMING PART OF PROSPECTUS
Mariner Post-Acute Network, Inc. ("MPN") hereby amends its Registration
Statement on Form S-4/S-8 (Registration No. 333-57339) (the "Registration
Statement"), by filing this Post-Effective Amendment No. 1 on Form S-8 (the
"Post-Effective Amendment") relating to the shares of the common stock, par
value $.01 per share, of MPN (the "Common Stock") issued as a part of the
exercise of (x) stock options granted under the 1995 Non-Employee Director Stock
Option Plan (the "1995 Plan") of Mariner Health Group, Inc. ("Mariner") and (y)
certain stock options of Mariner (the "Non-Plan Options") assumed by MPN in
connection with the Merger (defined below) as required by the Merger Agreement
(defined below). The options granted pursuant to the 1995 Plan and the Non-Plan
Options are referred to collectively herein as the "Options."
Paragon Health Network, Inc. (predecessor to MPN), Paragon Acquisition Sub,
Inc. ("Merger Sub") and Mariner entered into an Agreement and Plan of Merger,
dated as of April 13, 1998 (the "Merger Agreement"), pursuant to which Merger
Sub was merged (the "Merger") with and into Mariner with Mariner continuing as
the surviving corporation and as a wholly-owned subsidiary of MPN. Upon
consummation of the Merger, MPN assumed the 1995 Plan and the Options. As a
result, upon the exercise of the Non-Plan Options and the Options previously
granted under the 1995 Plan, the holder thereof will be entitled to receive
shares of Common Stock in lieu of shares of the common stock of Mariner, par
value $.01 per share.
The designation of the Post-Effective Amendment as Amendment No. 1 to the
Registration Statement denotes that the Post-Effective Amendment relates only to
the shares of Common Stock issuable upon the exercise of stock options under the
1995 Plan and pursuant to the Non-Plan Options.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information required to be set forth in the
Section 10(a) prospectus will be sent or given to plan participants as specified
by Rule 428(b)(1) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission (the
"Commission") by the Registrant (File No. 1-10968) are incorporated herein by
reference:
(1) Annual Report on Form 10-K for the fiscal year ended September 30, 1997;
(2) Quarterly Reports on Form 10-Q for the quarters ended December 31, 1997,
March 31, 1998 and June 30, 1998;
(3) Current Report on Form 8-K dated November 12, 1997, as amended by Form 8-
K/A dated January 20, 1998, Current Report on Form 8-K dated April 13,
1998, and Current Report on Form 8-K dated August 11, 1998; and
(4) The description of Common Stock contained in the Registration Statement on
Form 8-A, as amended, as filed with the Commission on December 23, 1991.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities and Exchange Act of 1934, as amended,
prior to filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part thereof from the date of filing such
documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is a Delaware corporation. Reference is made to Section 145 of
the Delaware General Corporation Law (the "DGCL"), which provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action 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 the corporation, or is or
was serving at its request in such capacity of another corporation or business
organization against 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 if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interest of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that such person's conduct was
unlawful. A Delaware corporation may indemnify officers and directors in an
action by or in the right of a corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her against the
expenses that he or she actually and reasonably incurred.
Reference is also made to Section 102(b)(7) of the DGCL, which permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of the director's fiduciary duty as
a director, except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or omissions not
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in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which
the director derived an improper personal benefit.
Article Seventh of the Second Amended and Restated Certificate of
Incorporation of the Registrant provides for the elimination of personal
liability of a director for breach of fiduciary duty as permitted by Section
102(b)(7) of the DGCL, as it may be amended from time to time. Article Eighth of
the Second Amended and Restated Certificate of Incorporation provides that the
Registrant shall indemnify its directors and officers to the fullest extent
permitted by Section 145 of the DGCL, as it may be amended from time to time. In
addition, Article VII of the Second Amended and Restated Bylaws of the
Registrant requires that the Registrant indemnify any person who was or is an
authorized representative of the Registrant and who was, is or is threatened to
be made a party to any third party proceeding by reason of the fact that such
person was or is an authorized representative of the Registrant against
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such proceeding if the
person acted in good faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interest of the Registrant and, with respect to
any criminal third party proceeding, had no reasonable cause to believe such
conduct was unlawful. In a corporate proceeding, the Registrant is required to
indemnify any person who was or is an authorized representative of the
Registrant and who was, is or is threatened to be made a party to any corporate
proceeding by reason of the fact that such person was or is an authorized
representative of the Registrant against expenses actually and reasonably
incurred by such person in connection with the defense or settlement of the
proceeding if such person acted in good faith and in a manner reasonably
believed to be in, or not opposed to, the best interest of the Registrant,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Registrant unless and only to the extent that the Court of Chancery or the court
in which such corporate proceeding is brought shall determine upon application
that the authorized representative is fairly and reasonably entitled to
indemnity for such expenses as the court shall deem proper. To the extent that
an authorized representative of the Registrant has been successful on the merits
or otherwise in the defense of any third party or corporate proceeding or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses actually and reasonably incurred by such person in connection
therewith. Any indemnification shall be made by the Registrant only as
authorized in the specific case upon a determination that indemnification is
proper under the circumstances because the authorized representative has either
met the applicable standard of conduct or has been successful on the merits or
otherwise and that the amount requested has been actually and reasonably
incurred. Such determination shall be made: (i) by the Board of Directors by a
majority of a quorum consisting of directors who were not parties to the
proceeding; (ii) if such a quorum is not obtainable or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion; or (iii) by the stockholders of the Registrant. Expenses
actually and reasonably incurred by an officer or director in defending any
third party or corporate proceeding shall be paid on his or her behalf by the
Registrant in advance of the final disposition of the proceeding upon receipt of
an undertaking by or on behalf of such officer or director to repay such amount
if it is ultimately determined that he or she is not entitled to be indemnified
by the Registrant. In the case of an authorized representative other than an
officer or director, the Registrant shall advance expenses actually and
reasonably incurred in defending any third party or corporate proceeding in
advance of the final disposition of the proceeding as authorized by the Board of
Directors upon receipt of the undertaking described above.
The Registrant maintains at its expense a policy of insurance that insures its
directors and officers, subject to certain exclusions and deductions as are
usual in such insurance policies, against certain liabilities which may be
incurred in those capacities.
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Item 8. Exhibits.
The following items are filed as exhibits to this Registration Statement:
Exhibit No.: Description
----------- -----------
5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Powell, Goldstein, Frazer & Murphy LLP (contained in
its exhibit filed as Exhibit 5.1)
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;
(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 the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the law or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
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) 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 with or furnished to the Commission by the
registrant pursuant to Section 13 or 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, 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.
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(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, each filing of the
Registrant's Annual Report pursuant to section 13(a) or section 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 the time shall be deemed to be the initial bona fide offering
thereof.
(h) Insofar as indemnification for liabilities arising under the Securities Act
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 Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing this Post-Effective Amendment No. 1 on Form S-8, and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, hereunto duly authorized, in the City of Atlanta, State of Georgia,
on this 31st day of August, 1998.
MARINER POST-ACUTE NETWORK, INC.
By: /s/ Susan Thomas Whittle
------------------------
Susan Thomas Whittle
Senior Vice President, General Counsel
and Secretary
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Pursuant to the requirements of the Securities Act of 1933, this Amendment No.
1 to the Registration Statement has been signed by the following persons in the
capacities indicated below on August 31st, 1998.
Signature Title
--------- -----
* Chairman of the Board and
- -------------------------- Chief Executive Officer
Keith B. Pitts (Principal Executive Officer)
/s/ Arthur W. Stratton, Jr. Vice Chairman of the Board,
- -------------------------- President, and Chief Operating
Arthur W. Stratton, Jr., M.D. Officer
* Director
- ---------------------------
Laurence M. Berg
* Director
- ---------------------------
Peter P. Copses
* Director
- ---------------------------
John H. Kissick
* Director
- ---------------------------
William G. Petty, Jr.
* Director
- ---------------------------
Robert L. Rosen
* Director
- ---------------------------
Gene E. Burleson
/s/ Samuel B. Kellett Director
- ---------------------------
Samuel B. Kellett
* Director
- ---------------------------
Joel S. Kanter
* Director
- ---------------------------
Jay M. Gellert
* Executive Vice President
- --------------------------- and Chief Financial Officer
Charles B. Carden (Principal Financial Officer)
* Vice President, Controller
- --------------------------- and Chief Accounting Officer
Ronald W. Fleming (Principal Accounting Officer)
*/s/ Susan Thomas Whittle
- ---------------------------
Susan Thomas Whittle
Attorney-in-Fact
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INDEX TO EXHIBITS
-----------------
Exhibit No.: Description
----------- -----------
5.1 Opinion of Powell, Goldstein, Frazer & Murphy LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Powell, Goldstein, Frazer & Murphy LLP (contained
in its exhibit filed as Exhibit 5.1)
<PAGE>
EXHIBIT 5.1
-----------
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
191 Peachtree Street N.E.
Suite 1600
Atlanta, Georgia 30303
(404) 572-6600
September 3, 1998
Mariner Post-Acute Network, Inc.
One Ravinia Drive
Suite 1500
Atlanta, GA 30346
Re: Post-Effective Amendment No. 1 on Form S-8 to
Registration Statement on Form S-4/S-8 for
1995 Non-Employee Director Stock Option Plan (the "1995 Plan")
and Outstanding Options of Mariner Health Group, Inc. ("Mariner")
(the "Non-Plan Options") assumed by Mariner Post-Acute Network,
Inc. ("MPN") in connection with a merger between a wholly-owned
subsidiary of MPN and Mariner
Ladies and Gentlemen:
We have served as counsel for MPN in connection with the registration under
the Securities Act of 1933, as amended, pursuant to Post-Effective Amendment No.
1 on Form S-8 to Registration Statement on Form S-4/S-8 (the "Registration
Statement"), of an aggregate of up to 733,500 shares (the "Shares") of common
stock, $.01 par value, of MPN, to be offered and sold by the exercise of (x)
options granted under the 1995 Plan and (y) the Non-Plan Options.
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of MPN and
the authorization of the Shares to be issued pursuant to the exercise of (x)
options granted under the 1995 Plan and (y) the Non-Plan Options as we have
deemed necessary and advisable. In such examinations, we have assumed the
genuineness of all signatures on all originals and copies of documents we have
examined, the authenticity of all documents submitted to us as originals and the
conformity to original documents of all certified, conformed or photostatic
copies. As to questions of fact material and relevant to our opinion, we have
relied upon certificates or representations of MPN officials and of appropriate
governmental officials.
We express no opinion as to matters under or involving the laws of any
jurisdiction other than the corporate law of the State of Delaware.
<PAGE>
Mariner Post-Acute Network, Inc.
September 3, 1998
Page 2
Based upon and subject to the foregoing and having regard for such legal
considerations as we have deemed relevant, it is our opinion that the Shares
have been duly authorized and that upon the issuance and delivery of the Shares
and payment therefor as provided in the 1995 Plan or the relevant Non-Plan
Option Agreement and as contemplated by the Registration Statement, such Shares
will be legally and validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Powell, Goldstein, Frazer & Murphy LLP
------------------------------------------
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
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EXHIBIT 23.1
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CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Post-Effective
Amendment No. 1 to Form S-4/S-8 Registration Statement (No. 333-57339)
pertaining to the 1995 Non-Employee Director Stock Option Plan and Outstanding
Options of Mariner Health Group, Inc. assumed by Mariner Post-Acute Network,
Inc. (formerly Paragon Health Network, Inc., formerly Living Centers of
America, Inc.) of our report dated December 10, 1997, with respect to the
consolidated financial statements and schedule of Mariner Post-Acute Network,
Inc. (formerly Paragon Health Network, Inc., formerly Living Centers of
America, Inc.) included in its Annual Report (Form 10-K) for the year ended
September 30, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
---------------------
Ernst & Young LLP
Houston, Texas
August 28, 1998
