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As filed with the Securities and Exchange Commission on May 23, 2000.
File No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RENAL CARE GROUP, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 62-1622383
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2100 WEST END AVENUE, SUITE 800
NASHVILLE, TENNESSEE 37203
(615) 345-5500
(Address, including zip code, and telephone number of
Principal Executive Offices)
RENAL DISEASE MANAGEMENT BY PHYSICIANS, INC.
AMENDED AND RESTATED 1997/1998 STOCK PLAN
(Full Title of the Plan)
R. DIRK ALLISON
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
RENAL CARE GROUP, INC.
2100 WEST END AVENUE, SUITE 800
NASHVILLE, TENNESSEE 37203
(615) 345-5500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered Offering Price Aggregate Registration Fee
Per Share Offering Price
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value per 7,000 $29.03 $203,210 $ 54
share (including rights to purchase 10,000 19.36 193,600 52
shares of Series A Junior 47,000 10.16 477,520 126
Participating Preferred Stock)(1) 1,950 0.01 20 1
- ------------------------------------------------------------------------------------------------------------------
TOTAL 65,950 $ -- $874,350 $233
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) An aggregate of 65,950 shares of RCG Common Stock are issuable under the
Renal Disease Management by Physicians, Inc. Amended and Restated 1997/1998
Stock Plan (the "RDM Plan"). This Registration Statement registers 65,950
shares under the RDM Plan and also covers any additional shares that may
hereafter become issuable as a result of the adjustment and anti-dilution
provisions of the RDM Plan.
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PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this
Registration Statement and are deemed to be a part hereof from the date of the
filing of such documents:
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999;
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000;
(3) The description of Common Stock contained in the Registrant's
Registration Statement on Form 8-A filed on January 26, 1996, and any amendment
or report filed with the purpose of updating any such description; and
(4) The description of Series A Junior Participating Preferred Stock
Purchase Rights contained in the Registrant's Registration Statement on Form 8-A
filed on May 5, 1997, and any amendment or report filed with the purpose of
updating any such description.
All other documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Renal Care Group's Amended and Restated Certificate of Incorporation,
as amended, provides that Renal Care Group shall to the fullest extent permitted
by Section 145 of the General Corporation Law of the State of Delaware, as
amended from time to time, indemnify its officers and directors.
Section 145 of the General Corporation Law of the State of Delaware
permits a corporation, under specified circumstances, to indemnify its
directors, officers, employees or agents against expenses (including attorney's
fees), judgments, fines and amounts paid in settlements actually and reasonably
incurred by them in connection with any action, suit or proceeding brought by
third parties by reason of the fact that they were or are directors, officers,
employees or agents, if such directors, officers, employees or agents acted in
good faith and in a manner they 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 reason to believe their conduct was unlawful. In a
derivative action, i.e., one by or in the right of the corporation,
indemnification may be made only for expenses actually and reasonably incurred
by directors, officers, employees or agents in connection with the defense or
settlement of an action or suit, and only with respect to a matter as to which
they shall have acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made if such person shall have been adjudged liable to
the corporation, unless and only to the extent that the court in which the
action or suit was brought shall determine upon application that the defendant
directors, officers, employees or agents are fairly and reasonably entitled to
indemnity for such expenses despite such adjudication of liability.
Renal Care Group's Amended and Restated Certificate of Incorporation,
as amended, contains a provision which eliminates, to the fullest extent
permitted by the General Corporation Law of the State of Delaware, director
liability for monetary damages for breaches of the fiduciary duty of care or any
other duty as a director.
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ITEM 8. EXHIBITS
The exhibits included as part of this Registration Statement are as
follows:
Exhibit Number Description
-------------- -----------
4(a) Amended and Restated Certificate of Incorporation of
the Registrant (incorporated by reference to Exhibit
3.1 of the Registrant's Registration Statement on
Form S-1, Registration No. 333-80221)
4(b) Certificate of Amendment of Certificate of
Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1.2 of the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1997, Commission File No. 0-27640)
4(c) Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock of the
Registrant (incorporated by reference to Exhibit
3.1.3 of the Registrant's Quarterly Report on Form
10-Q for the fiscal quarter ended June 30, 1997,
Commission File No. 0-27640)
4(d) Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.2 of the
Registrant's Registration Statement on Form S-1,
Registration No. 333-80221)
4(e) Specimen stock certificate for the Common Stock of
the Registrant (incorporated by reference to Exhibit
4.2 of the Registrant's Registration Statement on
Form S-1, Registration No. 333-80221)
4(f) Shareholder Rights Protection Agreement, dated May 2,
1997 between the Registrant and First Union National
Bank of North Carolina, as Rights Agent (incorporated
by reference to Exhibit 99.1 of the Registrant's
Current Report on Form 8-K filed May 5, 1997,
Commission File No. 0-27640)
4(g) Certificate of Amendment of Certificate of
Incorporation of the Registrant (incorporated by
reference to the Company's Form 10-Q for the quarter
ended September 30, 1999 (Commission File No.
0-27640))
5(a) Opinion of Alston & Bird
23(a) Consent of Counsel (included in Exhibit 5(a))
23(b) Consent of Ernst & Young LLP
24 Power of Attorney (included in Part II of this
Registration Statement)
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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 of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above 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 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
being 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 of 1933, 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 159d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
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 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the Registrant's Certificate of
Incorporation or Bylaws, 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 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 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 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 Nashville, State of Tennessee, on May 19, 2000.
RENAL CARE GROUP, INC.
By: /s/ Sam A. Brooks
----------------------------------------
Sam A. Brooks
Chairman of the Board, President and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Sam A. Brooks, Jr. and R. Dirk Allison, and
either of them (with full power in each to act alone), as true and lawful
attorneys-in-fact, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any 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,
hereby ratifying and confirming all that said attorneys-in-fact, or their
substitute or substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 19, 2000.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/ Sam A. Brooks Chairman of the Board, President, Chief Executive Officer
- -------------------------------------- and Director (principal executive officer)
Sam A. Brooks
/s/ R. Dirk Allison Executive Vice President, Chief Financial Officer,
- -------------------------------------- Secretary and Treasurer (principal financial and
R. Dirk Allison accounting officer)
/s/ John D. Bower, M.D. Director
- --------------------------------------
John D. Bower, M.D.
/s/ Joseph C. Hutts Director
- --------------------------------------
Joseph C. Hutts
/s/ Harry R. Jacobson, M.D. Director and Vice Chairman of the Board
- --------------------------------------
Harry R. Jacobson, M.D.
/s/ Kenneth E. Johnson, Jr., M.D. Director
- --------------------------------------
Kenneth E. Johnson, Jr., M.D
/s/ William V. Lapham Director
- --------------------------------------
William V. Lapham
/s/ Thomas A. Lowery, M.D. Director
- --------------------------------------
Thomas A. Lowery, M.D.
/s/ Stephen D. McMurray, M.D. Director
- --------------------------------------
Stephen D. McMurray, M.D.
/s/ W. Tom Meredith, M.D. Director
- --------------------------------------
W. Tom Meredith, M.D.
</TABLE>
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EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
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4(a) Amended and Restated Certificate of Incorporation of
the Registrant (incorporated by reference to Exhibit
3.1 of the Registrant's Registration Statement on
Form S-1, Registration No. 333-80221)
4(b) Certificate of Amendment of Certificate of
Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1.2 of the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1997, Commission File No. 0-27640)
4(c) Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock of the
Registrant (incorporated by reference to Exhibit
3.1.3 of the Registrant's Quarterly Report on Form
10-Q for the fiscal quarter ended June 30, 1997,
Commission File No. 0-27640)
4(d) Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.2 of the
Registrant's Registration Statement on Form S-1,
Registration No. 333-80221)
4(e) Specimen stock certificate for the Common Stock of
the Registrant (incorporated by reference to Exhibit
4.2 of the Registrant's Registration Statement on
Form S-1, Registration No. 333-80221)
4(f) Shareholder Rights Protection Agreement, dated May 2,
1997 between the Registrant and First Union National
Bank of North Carolina, as Rights Agent (incorporated
by reference to Exhibit 99.1 of the Registrant's
Current Report on Form 8-K filed May 5, 1997,
Commission File No. 0-27640)
4(g) Certificate of Amendment of Certificate of
Incorporation of the Registrant (incorporated by
reference to the Company's Form 10-Q for the quarter
ended September 30, 1999 (Commission File No.
0-27640))
5(a) Opinion of Alston & Bird
23(a) Consent of Counsel (included in Exhibit 5(a))
23(b) Consent of Ernst & Young LLP
24 Power of Attorney (included in Part II of this
Registration Statement)
<PAGE> 1
This Opinion Letter is provided to you for your benefit and for the
benefit of the Commission, in each case, solely with regard to the Registration
Statement, may be relied upon by you and the Commission only in connection with
the Registration Statement, and may not be relied upon by any other person or
for any other purpose without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement.
Sincerely,
ALSTON & BIRD
By: /s/ Steven L. Pottle
----------------------------------------
Steven L. Pottle, Esq.
2
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EXHIBIT 23(B)
CONSENTS OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Renal Disease Management by Physicians,
Inc. Amended and Restated 1997/1998 Stock Plan of our reports dated February 24,
2000, with respect to the consolidated financial statements and schedule of
Renal Care Group, Inc. included in its Annual Report (Form 10-K) for the year
ended December 31, 1999, filed with the Securities and Exchange Commission
/s/Ernst & Young LLP
Nashville, Tennessee
May 17, 2000
