<PAGE> 1
As filed with the Securities and Exchange Commission on February 4, 2000.
File No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
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 CARE GROUP, INC. 1999 LONG-TERM INCENTIVE PLAN
OUTSTANDING OPTIONS GRANTED OUTSIDE OF A PLAN FOR
537,000 SHARES GRANTED TO EMPLOYEES
(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)
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Securities Amount to Maximum Maximum Amount of
to be Registered be Registered(1) Offering Price Aggregate Registration
Per Share Offering Price Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value per 1,079,000 $18.25 $19,691,750 $ 5,199
share (including rights to purchase 222,940 $16.875 $ 3,762,113 $ 993
shares of Series A Junior 175,000 $16.625 $ 2,909,375 $ 768
Participating Preferred Stock)(3)
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par value per 560,060 $24.188(2) $13,546,731(2) $ 3,577
share (including rights to purchase
shares of Series A Junior
Participating Preferred Stock)(4)
- ------------------------------------------------------------------------------------------------------------------------
TOTAL 2,037,000 -- $39,909,969 $10,537
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) An aggregate of 1,500,000 shares of Renal Care Group, Inc. Common Stock
("RCG Common Stock") are issuable under the Renal Care Group, Inc. 1999
Long-Term Incentive Plan (the "RCG Plan") and options to purchase 545,000
shares of Renal Care Group, Inc. Common Stock have been granted outside of
a plan ("Freestanding Options"). This Registration Statement registers
1,500,000 Shares under the RCG Plan and 537,000 Freestanding Options and
also any additional shares that may hereafter become issuable as a result
of the adjustment and anti-dilution provisions of the RCG Plan and the
Freestanding Options.
(2) Estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457(h)(1) based on (i) the median offering price with
respect to shares for which the offering price is known, and (ii) the
average of the high and low sales price of $24.188 per share for the
Registrant's Common Stock on the Nasdaq National Market on February 2, 2000
with respect to shares for which the offering price is not known.
(3) Shares subject to outstanding options granted under the RCG Plan and
outstanding Freestanding Options.
(4) Shares which may be issued under the RCG Plan upon the exercise of options
which may be granted in the future under the RCG Plan.
<PAGE> 2
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, 1998;
(2) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1999, June 30, 1999 and September 30, 1999;
(3) The Registrant's Current Report on Form 8-K, filed February 10,
1999;
(4) The Registrant's Current Report on Form 8-K, filed April 22, 1999;
(5) The Registrant's Current Report on Form 8-K, filed August 5, 1999;
(6) The Registrant's Current Report on Form 8-K, filed November 3,
1999;
(7) 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
(8) 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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
RCG's Amended and Restated Certificate of Incorporation provides that
RCG 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
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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 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 defense directors, officers, employees or agents are fairly
and reasonably entitled to indemnify for such expenses despite such adjudication
of liability.
RCG's Amended and Restated Certificate of Incorporation 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.
ITEM 8. EXHIBITS
The exhibits included as part of this Registration Statement are as
follows:
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
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)
</TABLE>
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<TABLE>
<S> <C>
4(g) Certificate of Amendment of Certificate of Incorporation of the
Registrant
5(a) Opinion of Alston & Bird LLP
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)
</TABLE>
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.
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<PAGE> 5
(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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<PAGE> 6
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 February 4, 2000.
RENAL CARE GROUP, INC.
By: /s/ Sam A. Brooks, Jr.
------------------------------------------
Sam A. Brooks, Jr.
Chairman of the Board, President and Chief
Executive Officer
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<PAGE> 7
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 February 4, 2000.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/ Sam A. Brooks, Jr. Chairman of the Board, President, Chief Executive Officer
- --------------------------------------------- and Director (principal executive officer)
Sam A. Brooks, Jr.
/s/ R. Dirk Allison Executive Vice President, Chief Financial Officer,
- --------------------------------------------- Secretary and Treasurer (principal financial and
R. Dirk Allison accounting officer)
/s/ John Bower, M.D. Director
- ---------------------------------------------
John 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/ 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.
/s/ Kenneth Johnson, M.D. Director
- ---------------------------------------------
Kenneth Johnson, M.D.
/s/ William Lapham Director
- ---------------------------------------------
William Lapham
</TABLE>
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<PAGE> 8
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
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
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)
</TABLE>
<PAGE> 1
EXHIBIT 4(G)
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
RENAL CARE GROUP, INC.
RENAL CARE GROUP, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware (the
"Corporation"), DOES HEREBY CERTIFY:
FIRST: That on April 16, 1999 the Board of Directors of the Corporation
approved a proposed amendment of the Amended and Restated Certificate of
Incorporation of the Corporation, declaring said amendment to be in the best
interests of the Corporation and its stockholders and directing that the
proposed amendment be submitted to the stockholders of the Corporation for their
consideration and approval at the next annual meeting of stockholders. The
proposal amended Section 4.1 of Article IV of the Amended and Restated
Certificate of Incorporation of the Corporation by deleting such Section 4.1 in
its entirety and inserting in lieu thereof the following:
"Section 4.1. Total Number of Shares of Stock. The total
number of shares of stock of all classes that the Company shall have
authority to issue is 100,000,000. The authorized capital stock is
divided into 10,000,000 shares of Preferred Stock, $.01 par value per
share (the 'Preferred Stock'), and 90,000,000 shares of Common Stock,
$.01 par value per share (the 'Common Stock')."
SECOND: That thereafter on June 2, 1999, the stockholders of the
Corporation approved the proposed amendment at the annual meeting of
stockholders.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, Renal Care Group, Inc. has caused this Certificate
of Amendment of Amended and Restated Certificate of Incorporation to be signed
by its duly authorized officer this 8th day of June, 1999
RENAL CARE GROUP, INC.
By: /s/ Douglas B. Chappell
---------------------------------------------
Name: Douglas B. Chappell
-------------------------------------------
Title: Senior Vice President and Secretary
------------------------------------------
<PAGE> 1
EXHIBIT 5(A)
ALSTON & BIRD LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
404-881-7000
Fax: 404-881-7777
February 4, 2000
Renal Care Group, Inc.
2100 West End Avenue, Suite 800
Nashville, Tennessee 37203
Re: Form S-8 Registration Statement --
Renal Care Group, Inc.
Ladies and Gentlemen:
We have acted as counsel for Renal Care Group, Inc., a Delaware
corporation (the "Corporation"), in connection with the referenced Registration
Statement on Form S-8 (the "Registration Statement") being filed by the
Corporation with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended, and covering 1,500,000 shares of the
Corporation's common stock, $0.01 par value ("Common Stock"), that may be issued
pursuant to the Renal Care Group, Inc. 1999 Long-Term Incentive Plan (the
"Plan") and 545,000 options granted outside of a plan (the "Freestanding
Options"). This Opinion Letter is rendered pursuant to Item 8 of Form S-8 and
Item 601(b)(5) of Regulation S-K.
In the capacity described above, we have considered such matters of law
and of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of the
Corporation, certificates of public officials and such other documents as we
have deemed appropriate as a basis for the opinions hereinafter set forth. The
opinions set forth herein are limited to the laws of the State of Delaware as
expressed in the Delaware General Corporation Law, in reliance solely on
published general compilations thereof as of the date hereof.
Based upon the foregoing, it is our opinion that the 2,045,000 shares
of Common Stock covered by the Registration Statement and to be issued pursuant
to the Plan and the Freestanding
<TABLE>
<S> <C> <C>
1211 East Morehead Street 3605 Glenwood Avenue, Suite 310 601 Pennsylvania Avenue, N.W.
P. O. Drawer 34009 P. O. Drawer 31107 North Building, 11th Floor
Charlotte, NC 28234-4009 Raleigh, NC 27622-1107 Washington, DC 20004-2601
704-331-6000 919-420-2200 202-756-3300
Fax: 704-334-2014 Fax: 919-420-2260 Fax: 202-756-3333
</TABLE>
<PAGE> 2
Options, when issued accordance with the terms and conditions of the Plan and
the Freestanding Options, will be legally and validly issued, fully paid and
nonassessable.
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
<PAGE> 1
EXHIBIT 23(B)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Renal Care Group, Inc. 1999 Long Term
Incentive Plan and 537,000 options granted outside of a plan, of our reports
dated March 2, 1999, with respect to the consolidated financial statements and
schedule of Renal Care Group, Inc. included in its Current Report (Form 8-K)
dated April 22, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Nashville, Tennessee
January 31, 2000
