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As filed with the Securities and Exchange Commission on June 2, 1997
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ARBOR HEALTH CARE COMPANY
(Exact Name of Issuer as Specified in its Charter)
DELAWARE 34-1469604
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1100 SHAWNEE ROAD, P.O. BOX 840
LIMA, OHIO 45802-0840
(Address of principal executive offices)
ARBOR HEALTH CARE COMPANY
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
PIER C. BORRA
CHAIRMAN, PRESIDENT AND CEO
ARBOR HEALTH CARE COMPANY
1100 SHAWNEE ROAD, P.O. BOX 840
LIMA, OHIO 45802-0840
(419) 227-3000
(Name, Address and Telephone Number of Agent for Service)
Copy to:
GREGORY C. YADLEY, ESQUIRE
SHUMAKER, LOOP & KENDRICK, LLP
101 EAST KENNEDY BLVD., SUITE 2800
TAMPA, FL 33602
(813) 229-7600
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
===================================================================================================================================
PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO PROPOSED MAXIMUM OFFERING AGGREGATE AMOUNT
TO BE REGISTERED BE REGISTERED (1) PRICE PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Shares of Common
Stock, par value 150,000 shares $28.75 $4,312,500 $1,306.82
$.03 per share
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</TABLE>
(1) A maximum of 150,000 shares may be issued under the Employee Stock
Purchase Plan. Such shares may be in whole or in part, as the Board of
Directors of the Registrant shall determine, authorized but unissued shares of
Common Stock or issued shares of Common Stock which shall have been reacquired
by the Registrant. The registration statement also includes an indeterminable
number of additional shares that may become issuable as a result of terminated,
expired or surrendered options for shares of Common Stock, or pursuant to the
antidilution adjustment provisions of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h), the fee is calculated on the basis of the average of
the high and low prices for the Registrant's Common Stock reported in The
Nasdaq Stock Market on May 29, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the registrant (Exchange Act File No.
0-22178) with the Securities and Exchange Commission are incorporated herein by
reference and made a part hereof:
(a)The Registrant's most recent annual report on Form 10-K, or,
if the financial statements therein are more current, the Registrant's
most recent prospectus, other than the prospectus of which this document
is a part, filed pursuant to rule 424(b) of the Commission under the
Securities Act of 1933.
(b)All other reports filed by the Registrant pursuant to sections
13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of
the fiscal year covered by the annual report or the prospectus referred
to in (a) above.
(c)The description of the Registrant's Common Stock which is
contained in the Registrant's registration statement filed under
Section 12 of the Securities Exchange Act of 1934, including any
amendment or reports filed for the purpose of updating such description.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act after the
date of this Registration Statement, but prior to the filing of a
post-effective amendment to this Registration Statement which indicates that
all securities offered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement. Each document
incorporated by reference into this Registration Statement shall be deemed to
be a part of this Registration Statement from the date of the filing of such
document with the Commission until the information contained therein is
superseded or updated by any subsequently filed document which is incorporated
by reference into this Registration Statement or by any document which
constitutes part of the prospectus relating to the Arbor Health Care Company
Employee Stock Purchase Plan (the "Plan") which is used to satisfy the
requirements of Section 10(a) of the Securities Act of 1933 and Rule 428
promulgated thereunder.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized by the Delaware General Corporation Law ("GCL"), the
registrant's Certificate of Incorporation ("the Certificate") limits the
liability of Directors of the registrant for monetary damages. The effect of
this provision in the Certificate is to eliminate the rights of the registrant
and its stockholders (through stockholders' derivative suits on behalf of the
registrant) to recover monetary damages against a Director for breach of the
fiduciary duty of care as a Director (including breaches resulting from
negligent behavior) except in certain limited situations. This provision does
not limit or eliminate the rights of the registrant or any stockholder to seek
non-monetary relief such as an injunction or rescission in the event of a
breach of a Director's duty of care. These provisions will not alter the
liability of Directors under federal securities laws.
The Certificate provides that the registrant shall indemnify its
Directors, officers, employees and agents to the maximum extent and under all
circumstances permitted by the Delaware GCL. The registrant believes that
these provisions will assist the registrant in attracting and retaining
qualified individuals to serve as Directors and officers.
In addition, the registrant has entered into Indemnity Agreements with
its Directors and executive officers providing for indemnification to the
fullest extent permitted by law. The Indemnity Agreements also establish the
presumption that the Director or executive officer has met the applicable
standard of conduct required for indemnification. The agreements provide for
litigation expenses to be advanced to a Director or executive officer at his or
her request provided that he or she undertakes to repay the amount advanced if
it is ultimately determined that he or she is not entitled to indemnification
for such expenses. The Indemnity Agreements' indemnification provisions
applicable to a derivative suit provide for indemnification for amounts paid in
settlement and partial indemnification in the event that a Director or
executive officer is not entitled to full indemnification. The form of the
Indemnity Agreements is filed as Exhibit 10.1.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
EXHIBIT INDEX
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Exhibit No. Description
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4 Arbor Health Care Company Employee Stock Purchase Plan
(incorporated by reference to the Company's Proxy
Statement dated April 18, 1997)
5 Opinion of Shumaker, Loop & Kendrick, LLP as to the
legality of the securities being registered
10.1 Form of Indemnification Agreement between the Company and its
Directors and Executive Officers (incorporated by reference
to Exhibit 10.19 of the Company's Registration Statement on
Form S-1 (File No. 33-65080), filed July 29, 1993 under the
Securities Act of 1933)
24.1 Consent of Shumaker, Loop & Kendrick, LLP (included in
their opinion filed as Exhibit 5)
24.2 Consent of Ernst & Young LLP, independent auditors
ITEM 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to the registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (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;
(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 (1)(a)(i) and (1)(a)(ii) do
not apply if 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 (the "Exchange Act") that are incorporated by reference in the
registration statement.
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(b) That, for purposes 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.
(c) To remove from registration by means of post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
2. 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 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
3. The undersigned registrant hereby undertakes to deliver or cause
be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
4. 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, as
amended, 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, thereunto duly authorized, in the City of Lima, State of Ohio, on
this 22nd day of May, 1997.
ARBOR HEALTH CARE COMPANY
By: /s/ Pier C. Borra
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Pier C. Borra, Chairman,
President and CEO
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Pier C. Borra his true and lawful attorney-in-fact and agent, for him
and in his name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities indicated on this 22nd day of May, 1997.
SIGNATURE TITLE
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/s/ Pier C. Borra
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Pier C. Borra Director, Chairman of the Board, President
and CEO
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/s/ Carl R. Adkins
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Carl R. Adkins Director
/s/ Thomas A. James
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Thomas A. James Director
/s/ Fredrick C. Powell
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Fredrick C. Powell Director
/s/ Bruce G. Thompson
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Bruce G. Thompson Director
/s/ James F. White, Jr.
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James F. White, Jr. Director
/s/ Dennis R. Smith
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Dennis R. Smith Senior Vice President-Finance, Chief Financial
Officer, and Chief Accounting Officer
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EXHIBIT INDEX
The following exhibits are filed herewith as part of this Registration
Statement:
<TABLE>
<CAPTION>
Sequential
Exhibit No. Description Page No.
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<S> <C> <C>
4 Arbor Health Care Company Employee Stock Purchase Plan
(incorporated by reference to the Company's Proxy
Statement dated April 18, 1997)
5 Opinion of Shumaker, Loop & Kendrick, LLP as to the
legality of the securities being registered
10.1 Form of Indemnification Agreement between the Company
and its Directors and Executive Officers (incorporated
by reference to Exhibit 10.19 of the Company's
Registration Statement on Form S-1 (File No.
33-65080), filed July 29, 1993 under the Securities
Act of 1933)
24.1 Consent of Shumaker, Loop & Kendrick, LLP (included in
their opinion filed as Exhibit 5)
24.2 Consent of Ernst & Young LLP, independent auditors
</TABLE>
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EXHIBIT 5
[Letterhead of Shumaker, Loop & Kendrick, LLP]
May 29, 1997
Arbor Health Care Company
1100 Shawnee Road
P.O. Box 840
Lima, Ohio 45802
Re: SECURITIES AND EXCHANGE COMMISSION
REGISTRATION STATEMENT ON FORM S-8
COVERING 150,000 SHARES OF COMMON STOCK, $.03 PAR VALUE
Gentlemen:
We are legal counsel to Arbor Health Care Company, a Delaware
corporation (the "Company"), and have acted as such in the preparation and
filing of its Registration Statement on Form S-8 with the Securities and
Exchange Commission (the "SEC") pursuant to the requirements of the Securities
Act of 1933, as amended, and the General Rules and Regulations of the SEC
promulgated thereunder for the registration of 150,000 shares (the "Shares") of
the common stock, par value $.03 per share, of the Company. In connection with
the following opinion, we have examined and have relied upon such documents,
records, certificates, statements and instruments as we have deemed necessary
and appropriate to render the opinion herein set forth.
Based upon the foregoing, it is our opinion that the Shares, when and
if sold in the manner set forth in the Registration Statement, will be legally
issued, fully paid and nonassessable.
The undersigned hereby consents to the filing of this opinion as
Exhibit 5 to the Registration Statement.
Very truly yours,
SHUMAKER, LOOP & KENDRICK, LLP
/s/ Gregory C. Yadley
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Gregory C. Yadley
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EXHIBIT 24.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Arbor Health Care Company Employee Stock Purchase
Plan of our report dated February 7, 1997, with respect to the consolidated
financial statements and schedule of Arbor Health Care Company included in its
Annual Report (Form 10-K) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
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ERNST & YOUNG LLP
Toledo, Ohio
May 29, 1997
