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As filed with the Securities and Exchange Commission on September 3, 1998
Registration No. 333-39485
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
AMENDMENT NO. 1
TO
FORM 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)
PARAGON HEALTH NETWORK, INC. LONG-TERM INCENTIVE PLAN
GRANCARE, INC. 401(K) SAVINGS PLAN
GRANCARE, INC. 1996 STOCK INCENTIVE PLAN
GRANCARE, INC. 1996 REPLACEMENT STOCK OPTION PLAN
GRANCARE, INC. OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN
EVERGREEN HEALTHCARE, INC. EMPLOYEES' 401(K) PROFIT SHARING PLAN
(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, POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
GENERAL 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
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Price Aggregate Offering Amount of
To Be Registered Registered/(1)/ /(2)/ Per Share/(3)/ Price/(3)/ Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per
share.............................. 4,010,724 $7.4375 $29,829,760 $8,800
========================================================================================================================
</TABLE>
/(1)/ Shares registered pursuant to this Amendment No. 1 include: (i) 10,724
shares (as adjusted for the 3 for 1 stock split which took place on
December 29, 1997 (the "Stock Split")) to be issued pursuant to the
Evergreen Healthcare, Inc. Employees' 401(k) Profit Sharing Plan
("Evergreen 401(k) Plan"), which was assumed by the Registrant in
connection with the GranCare Merger (defined below),and (ii) 4,000,000
shares to be issued pursuant to the Registrant's 1997 Long-Term Incentive
Plan (the "1997 Plan") (the number of shares authorized for issuance under
the 1997 Plan was increased from 6,000,000 to 10,000,000 shares pursuant
to a proposal submitted to a special meeting of the Registrant's
stockholders on July 28, 1998). This Registration Statement also covers an
indeterminate number of plan interests issuable under the Evergreen 401(k)
Plan and such additional shares as may be issued by the Registrant under
such plan pursuant to a stock split, stock dividend, recapitalization or
similar event involving the Registrant's common stock.
/(2)/ An aggregate of 9,205,986 shares (as adjusted for the Stock Split) were
registered pursuant to the original filing of this Registration Statement.
Shares previously registered include: (i) 6,000,000 shares to be issued
under the Paragon Health Network, Inc. 1997 Long-Term Incentive Plan; (ii)
351,900 shares to be issued under the GranCare, Inc. 401(k) Savings Plan;
(iii) 1,055,700 shares to be issued under the GranCare, Inc. 1996 Stock
Incentive Plan; (iv) 1,657,626 shares to be issued under the GranCare,
Inc. 1996 Replacement Stock Option Plan; and (v) 140,760 shares to be
issued under the GranCare, Inc. Outside Directors' Stock Option Plan. The
Registrant assumed the obligations of GranCare, Inc. under the plans
listed in clauses (ii)-(v) above in connection with the merger of
GranCare, Inc. with a wholly owned subsidiary of the Registrant, with
GranCare, Inc. surviving the merger as a wholly owned subsidiary of the
Registrant (the "GranCare Merger"), and will issue shares of the
Registrant's Common Stock in lieu of shares of GranCare, Inc. common stock
under such plans. This Registration Statement also covers an indeterminate
number of plan interests issuable under the GranCare, Inc. 401(k) Savings
Plan and such additional shares as may be issued by the Registrant under
any of the plans listed above pursuant to a stock split, stock dividend,
recapitalization or similar event involving the Registrant's Common Stock.
/(3)/ Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h)(1) under the Securities Act of 1933, as amended (the
"Securities Act") and based on the average of the high and low sales
prices reported on the New York Stock Exchange Composite Tape on August
31, 1998.
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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
Current Report on 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 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
II-1
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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 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 (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.
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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.
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.
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(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.
(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
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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 Amendment No. 1 to
the 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
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 31, 1998.
Signature Title
--------- -----
* Chairman of the Board and
- --------------------------------- Chief Executive Officer
Keith B. Pitts (Principal Executive Officer)
/s/ Arthur W. Stratton, Jr., M.D. 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
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<PAGE>
/s/ Samuel B. Kellet Director
- ---------------------------------
Samuel B. Kellet
* Director
- ---------------------------------
Joel S. Kanter
/s/ Jay M. Gellert Director
- ---------------------------------
Jay M. Gellert
* Executive Vice President
- --------------------------------- and Chief Financial Officer
Charles B. Carden (Principal Financial Officer)
/s/ Ronald W. Fleming 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: Amendment No. 1 to Registration Statement on Form S-8
Paragon Health Network, Inc. Long Term Incentive Plan and
Evergreen Healthcare, Inc. Employees' 401(k) Profit Sharing Plan
(collectively, the "Plans")
Ladies and Gentlemen:
We have served as counsel for Mariner Post-Acute Network, Inc. (formerly,
"Paragon Health Network, Inc."), a Delaware corporation (the "Company"), in
connection with the registration under the Securities Act of 1933, as amended,
pursuant to Amendment No. 1 to a Registration Statement on Form S-8 (the
"Registration Statement"), of an aggregate of 4,010,724 shares (the "Shares") of
common stock, $.01 par value, of the Company, to be offered and sold by the
Company pursuant to the Plans.
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 the
Company and the authorization of the shares to be issued pursuant to the Plans
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 Company
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.
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 Plans and as contemplated by the
Registration Statement, such Shares will be legally and validly issued, fully
paid and non-assessable.
<PAGE>
Mariner Post-Acute Network, Inc.
September 3, 1998
Page 2
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
<PAGE>
EXHIBIT 23.1
------------
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Amendment No. 1 to Form
S-8 Registration Statement (No. 333-39485) pertaining to the Paragon Health
Network, Inc. Amendment No. 1 to Long-Term Incentive Plan; GranCare, Inc.
401(k) Savings Plan; GranCare, Inc. 1996 Stock Incentive Plan; GranCare, Inc.
1996 Replacement Stock Option Plan; GranCare, Inc. Outside Directors' Stock
Incentive Plan; and Evergreen Healthcare, Inc. Employees' 401(k) Profit Sharing
Plan 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
