-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GJvsxyRS3TXBYNDd6LRj1do/EbKnldXh2Osg4Dwi7+j4EpgdkxlirwaHDvx1K3/W /Erq7sIaVpDDawJZh3hR5w== 0000950124-98-005228.txt : 19980928 0000950124-98-005228.hdr.sgml : 19980928 ACCESSION NUMBER: 0000950124-98-005228 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980925 EFFECTIVENESS DATE: 19980925 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEALTH CARE & RETIREMENT CORP / DE CENTRAL INDEX KEY: 0000878736 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SKILLED NURSING CARE FACILITIES [8051] IRS NUMBER: 341687107 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-64235 FILM NUMBER: 98714645 BUSINESS ADDRESS: STREET 1: ONE SEAGATE CITY: TOLEDO STATE: OH ZIP: 43604-2616 BUSINESS PHONE: 4192525500 MAIL ADDRESS: STREET 1: ONE SEAGATE CITY: TOLEDO STATE: OH ZIP: 43604-2616 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on September 25, 1998 Registration No. 333-___ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------- HEALTH CARE AND RETIREMENT CORPORATION (Exact name of registrant as specified in its charter) 34-1687107 Delaware (I.R.S. Employer (State of incorporation) Identification Number) HEALTH CARE AND RETIREMENT CORPORATION One SeaGate Toledo, Ohio 43604-2616 (419) 252-5500 (Address of principal executive offices) HEALTH CARE AND RETIREMENT CORPORATION AMENDED RESTRICTED STOCK PLAN (Full title of the Plan) ------------------ R. Jeffrey Bixler Copies to: Mark D. Gerstein Vice President, General Counsel and Secretary Latham & Watkins Health Care and Retirement Corporation Sears Tower, Suite 5800 One SeaGate Chicago, Illinois 60606 Toledo, Ohio 43604-2616 (312) 876-7700 (419) 252-5500 Counsel to Registrant (Name, address, including zip code, and telephone number, including area code, of agent for service) -------------------- CALCULATION OF REGISTRATION FEE
=========================================================================================================================== Title of each class of Amount Proposed maximum Proposed maximum Amount of securities to be registered to be registered offering price per aggregate offering registration fee share (1) price - --------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 337,750 Shares $26.84 $9,065,210 $2,674.24 per share ===========================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(h), the proposed maximum offering price per share is based upon the average of the high and low prices reported on the New York Stock Exchange for the registrant's common stock on September 18, 1998, which was $26.84 per share. ================================================================================ 2 PROSPECTUS 337,750 Shares HEALTH CARE AND RETIREMENT CORPORATION Common Stock This Prospectus relates to the offering by certain employees, officers and directors of Health Care and Retirement Corporation (the "Company" or "HCR") of 337,750 shares of common stock, par value $.01 per share, of the Company (the "Common Stock"). This Prospectus will be to effect resales of the Common Stock used by persons who are "affiliates" (as that term is defined under the Securities Act of 1933, as amended) of the Company as well as persons who are not affiliates of the Company. See "Selling Stockholders." The Company will not receive any proceeds from the sale of Common Stock by selling stockholders. The Company's Common Stock is listed on the New York Stock Exchange under the symbol "HCR." On September 18, 1998, the last reported sale price of the Company's Common Stock was $26.84 per share. --------------------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. --------------------- No person has been authorized to give any information or make any representation other than those contained in this Prospectus (including material incorporated by reference therein) and, if given or made, any such information or representation must not be relied upon as having been authorized by the Company, the selling stockholders or by any other person deemed to be an underwriter. Neither the delivery of this Prospectus nor any sale made hereunder shall, under any circumstances, create an implication that there has been no change in the affairs of the Company since the date hereof. This Prospectus does not constitute an offer or solicitation by anyone in any jurisdiction in which such offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation. The date of this Prospectus is September 25, 1998. 2 3 AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices at Seven World Trade Center, 13th Floor, New York, New York 10048 and Northwest Atrium Center, 500 Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can also be obtained at prescribed rates from the Public Reference Section of the Commission at its principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission also maintains an Internet site at http://www.sec.gov that contains reports, proxy and information statements and other information regarding registrants that file electronically with the Commission. Such reports, proxy statements and other information of the Company should also be available at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005. The Company has filed with the Commission a Registration Statement on Form S-8 (including all amendments thereto, the "Registration Statement") under the Securities Act of 1933 (the "Securities Act") with respect to the Common Stock offered hereby. As permitted by the rules and regulations of the Commission, this Prospectus does not contain all the information set forth in the Registration Statement and the exhibits thereto and to which reference is hereby made. TABLE OF CONTENTS Incorporation of Certain Documents by Reference..........................4 The Company..............................................................4 Selling Stockholders.....................................................5 Use of Proceeds..........................................................7 Plan of Distribution.....................................................7 Legal Matters............................................................8 Experts..................................................................8 Forward-Looking Statements...............................................8 SEC Position On Indemnification..........................................8 3 4 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The documents listed below have been filed by the Company with the Commission and are incorporated herein by reference: (1) the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997; (2) the Company's Quarterly Reports on Form 10-Q for the quarterly periods ended March 31,1998 and June 30, 1998; (3) the Company's Current Report on Form 8-K filed on June 16, 1998; (4) the Company's Registration Statement on Form S-4 (Registration Statement No. 333-61677) filed on August 17, 1998; (5) all other reports and subsequent reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act; and (6) the description of the Company's Common Stock contained in the Company's Registration Statement on Form S-1, filed on August 30, 1991 (Registration Statement No. 33-42535), including any amendment or report filed for the purpose of updating such description. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Prospectus prior to the 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 Prospectus and to be part hereof from the date of filing such documents. Any statement contained in a document incorporated by reference or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein, or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. A copy of the documents incorporated by reference (other than exhibits thereto) will be forwarded without charge to each person to whom a copy of this Prospectus is delivered, upon such person's written or oral request to Health Care and Retirement Corporation, Attention: Secretary, One SeaGate, Toledo, Ohio 43604-2616, telephone number (419) 252-5500. THE COMPANY The Company, through its wholly owned subsidiaries, provides a range of health care services, including long-term care, subacute medical care, rehabilitation therapy, home health care, pharmacy services and management services for subacute care, rehabilitation therapy, vision care and eye surgery. The principal executive offices of the Company are located at One SeaGate, Toledo, Ohio 43604-2616. The telephone number is (419) 252-5500. 4 5 SELLING STOCKHOLDERS This Prospectus covers possible sales by affiliates and non- affiliates of the Company (as well as unnamed non-affiliates, each of whom may sell less than 1,000 shares of Common Stock) (collectively, the "Selling Stockholders") of shares they acquired in connection with their employment with the Company pursuant to grants under the Health Care and Retirement Corporation Amended Restricted Stock Plan. The name of each Selling Stockholder who may offer for sale 1000 shares or more of Common Stock in the aggregate from time to time is listed below, along with the relationship of such Stockholder with the Company and/or Health Care and Retirement Corporation of America ("HCRA"), a subsidiary of the Company, the number of shares of Common Stock owned by them prior to the offering, the number of shares that such stockholder may offer for sale hereby and the number and percentage of shares that such stockholder would own after the sale of all shares offered hereby. The stockholders listed below have sole voting and investment powers with respect to the shares. Their addresses are in care of the Company.
Shares Owned After Shares Owned Shares Offering Name Relationship Prior to Offering Offered Hereby Number Percent - ---- ------------ ----------------- -------------- ------ ------- Paul A. Ormond Chairman of the Board, 2,559,891(1) 150,000 2,409,891 5.2% President and Chief Executive Officer of HCR and President and Chief Executive Officer of HCRA M. Keith Weikel Senior Executive Vice 693,753(2) 40,000 653,753 1.4 President and Chief Operating Officer of HCR and HCRA Geoffrey G. Meyers Executive Vice 514,758(3) 30,000 484,758 1.1 President, Chief Financial Officer and Treasurer of HCR and Executive Vice President and Chief Financial Officer of HCRA R. Jeffrey Bixler Vice President, General 157,774(4) 20,000 137,774 * Counsel and Secretary of HCR and HCRA Paul G. Sieben Vice President and 152,328(5) 7,500 144,828 * Director of Development and Construction of HCR and HCRA Wade B. O'Brian Vice President and 108,742(6) 7,500 101,242 * Director of Human Resources and Labor Relations of HCR and HCRA Jeffrey W. Ferguson Vice President and 99,997(7) 7,500 92,497 * General Manager of Midwest Division of HCR and HCRA, Vice President and Director of Marketing of HCR and HCRA since September 1995
5 6
Shares Owned After Shares Owned Shares Offering Name Relationship Prior to Offering Offered Hereby Number Percent - ---- ------------ ----------------- -------------- ------ ------- Spencer C. Moler Vice President and 42,148(8) 5,000 37,148 * Controller of HCR and Controller and Treasurer of HCRA William H. Kinschner Vice President and 151,256(9) 6,000 146,256 * Director of Management Support Services of HCR Nancy A. Edwards Vice President and 43,058(10) 7,500 35,558 * General Manager of Central Division of HCR and HCRA F. Joseph Schmitt Vice President and 28,702(11) 7,500 21,202 * General Manager of Southern Division of HCR and HCRA J. Susan Hines Vice President and 31,468(12) 5,000 26,468 * Director of Medical Specialty Programs of HCR and HCRA since December 1996, Vice President and Director of Clinical Services and Specialty Programs of HCR and HCRA from May 1993 to December 1996 Barry A. Lazarus Vice President and 15,700(13) 5,000 10,700 * Director of Reimbursement of HCR and HCRA Joyce C. Smith Vice President and 9,895(14) 5,000 4,895 * Director of Professional Services of HCR and HCRA John Graham Vice President, Director 14,938(15) 1,500 13,438 * of Rehabilitation Services of HCR and HCRA since August 1998 and Assistant Vice President, Director of Rehabilitation Services of HCRA prior to August 1998 Deborah Workman Vice President, Director 1,500 1,500 0 * of Information Services of HCR and HCRA since May 1998 and Assistant Vice President, Director of Information Services of HCRA prior to May 1998 Doug A. Haag Treasurer of HCR since 9,925(16) 1,500 8,425 * August 1998 and Assistant Treasurer of HCR prior to August 1998 John Remenar Vice President, Director 22,584(17) 1,500 21,084 * of Financial Services of HCR and HCRA since August 1998 and Assistant Vice President, Director of Financial Services of HCRA prior to August 1998 Bill Chenevert Vice President, Director 18,191(18) 1,000 17,191 * of Operations Support of HCR and HCRA since August 1998 and Director of Operations Support of HCRA prior to August 1998 David Gehrich Director of Tax of HCRA 7,204(19) 1,000 6,204 * Frank Alcorn Director of Internal Audit 2,778 1,000 1,778 * & Risk Management of HCRA
6 7
Shares Owned After Shares Owned Shares Offering Name Relationship Prior to Offering Offered Hereby Number Percent - ---- ------------ ----------------- -------------- ------ ------- James Millspaugh Assistant Vice President, 1,728 1,000 728 * Director of Human Resources Operations Support of HCRA Gordon Ochs Regional Manager of HCRA 7,225(20) 1,000 6,225 * William Adams Regional Manager of HCRA 1,000 1,000 0 * William Morrison Regional Manager of HCRA 1,000 1,000 0 * Alan Isaacson Regional Manager of HCRA 1,000 1,000 0 * Kenneth Heitkamp Regional Manager of HCRA 1,000 1,000 0 * Sherrian Wood Regional Manager of HCRA 17,116(21) 1,000 16,116 * Lynn Hood Regional Manager of HCRA 3,832(22) 1,000 2,832 * Linda Bair Regional Manager of HCRA 5,500(23) 1,000 4,500 * Karen Forrest Regional Manager of HCRA 9,762(24) 1,000 8,762 * Susan Oginsky Regional Manager of HCRA 1,100 1,000 100 * Sally Gates Regional Manager of HCRA 3,000(25) 1,000 2,000 * Cyndi Taplin Regional Manager of HCRA 2,220(26) 1,000 1,220 * Julie Musiol Senior Administrator of HCRA 1,872(27) 1,000 872 * Sherry Reid Director of Alzheimer 7,780(28) 1,000 6,780 * Program Development of HCRA Bruce Schroeder Director of Operations 6,347(29) 1,000 5,347 * Support for Home Health of HCRA Terrie Restivo-Mock Legal Counsel II of HCRA 1,510 1,000 510 * Frank Jannazo Director of Ancillary 3,986(30) 1,000 2,986 * Services Management of HCRA Martin Allen Assistant Vice President, 2,203(31) 1,000 1,203 * Director of Reimbursement Services of HCRA David Roth Director of Planning and 2,815 1,000 1,815 * Budgeting of HCRA Ann Otley Manager Corporate Benefits 9,501(32) 1,000 8,501 * of HCRA Douglas Crail Senior Manager Networking 2,964(33) 1,000 1,964 * of HCRA Kenneth McManis Manager of Construction 2,660 1,000 1,660 * of HCRA Richard Nolen Manager of Design of HCRA 8,736(34) 1,000 7,736 *
- ---------------------- (1) Includes 1,829,320 shares subject to options exercisable within 60 days. (2) Includes 506,394 shares subject to options exercisable within 60 days. (3) Includes 389,348 shares subject to options exercisable within 60 days. (4) Includes 124,820 shares subject to options exercisable within 60 days. (5) Includes 66,001 shares subject to options exercisable within 60 days. (6) Includes 80,510 shares subject to options exercisable within 60 days. (7) Includes 65,836 shares subject to options exercisable within 60 days. (8) Includes 24,539 shares subject to options exercisable within 60 days. (9) Includes 96,929 shares subject to options exercisable within 60 days. (10) Includes 32,250 shares subject to options exercisable within 60 days. (11) Includes 20,850 shares subject to options exercisable within 60 days. (12) Includes 19,800 shares subject to options exercisable within 60 days. (13) Includes 10,500 shares subject to options exercisable within 60 days. (14) Includes 4,125 shares subject to options exercisable within 60 days. (15) Includes 12,700 shares subject to options exercisable within 60 days. (16) Includes 6,925 shares subject to options exercisable within 60 days. (17) Includes 20,050 shares subject to options exercisable within 60 days. (18) Includes 14,650 shares subject to options exercisable within 60 days. (19) Includes 2,300 shares subject to options exercisable within 60 days. (20) Includes 6,225 shares subject to options exercisable within 60 days. (21) Includes 14,350 shares subject to options exercisable within 60 days. (22) Includes 2,700 shares subject to options exercisable within 60 days. (23) Includes 4,500 shares subject to options exercisable within 60 days. (24) Includes 8,550 shares subject to options exercisable within 60 days. (25) Includes 1,500 shares subject to options exercisable within 60 days. (26) Includes 1,125 shares subject to options exercisable within 60 days. (27) Includes 525 shares subject to options exercisable within 60 days. (28) Includes 6,250 shares subject to options exercisable within 60 days. (29) Includes 1,850 shares subject to options exercisable within 60 days. (30) Includes 1,400 shares subject to options exercisable within 60 days. (31) Includes 750 shares subject to options exercisable within 60 days. (32) Includes 6,400 shares subject to options exercisable within 60 days. (33) Includes 1,575 shares subject to options exercisable within 60 days. (34) Includes 3,750 shares subject to options exercisable within 60 days. *Amount represents less than 1%. USE OF PROCEEDS The Company will not receive any proceeds from the sale of the shares offered hereby. All of the proceeds will be received by the selling stockholders. See "Selling Stockholders." PLAN OF DISTRIBUTION The Selling Stockholders may sell shares of Common Stock in any of the following ways: (i) through dealers; (ii) through agents; or (iii) directly to one or more purchasers. The distribution of the shares of Common Stock may be effected from time to time in one or more transactions (which may involve crosses or block transactions) (A) on the New York Stock Exchange (or on such other national stock exchanges on which the shares of Common Stock may be traded from time to time) in transactions which may include special offerings, exchange distributions and/or secondary distributions pursuant to and in accordance with the rules of such exchange, (B) in the over-the-counter market, or (C) in transactions other than on an exchange or in the over-the-counter market, or in a combination of such transactions. Any such transaction may be effected at market prices prevailing at the time of sale, at prices related to such prevailing market prices, at negotiated prices or at fixed prices. The Selling Stockholders may effect such transactions by selling shares of Common Stock to or through broker-dealers, and such broker-dealers may receive compensation in the form of discounts, concessions or commissions from the Selling Stockholders and/or commissions from purchasers of shares of Common Stock for whom they may act as agent. All brokers' commissions, concessions or discounts will be paid by the Selling Stockholders. The Selling Stockholders and any broker-dealers or agents that participate in the distribution of shares of Common Stock by them might be deemed to be "underwriters," and any discounts, commissions or concessions received by any such broker-dealers or agents might be deemed to be underwriting discounts and commissions, under the Securities Act. 7 8 All expenses of registration incurred in connection with this offering are being borne by the Company, but all selling and other expenses incurred by the Selling Stockholders will be borne by such Selling Stockholders. LEGAL MATTERS The legality of the shares of Common Stock offered hereby will be passed upon for the Company by Latham & Watkins, Chicago, Illinois. John J. Clair, Jr., a partner in Latham & Watkins, is a director of the Company and is eligible to purchase shares of Common Stock pursuant to options granted to him pursuant to the Health Care and Retirement Corporation Stock Option Plan for Outside Directors. For so long as Mr. Clair remains a director of the Company, he is eligible to receive additional grants of options to purchase shares of Common Stock. EXPERTS The consolidated financial statements of Health Care and Retirement Corporation appearing in Health Care and Retirement Corporation's Annual Report (Form 10-K) for the year ended December 31, 1997, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given upon the authority of such firm as experts in accounting and auditing. FORWARD-LOOKING STATEMENTS This Prospectus contains, or incorporates by reference, certain statements that may be deemed "forward-looking statements" within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. All statements, other than statements of historical facts, that address activities, events or developments that the Company intends, expects, projects, believes or anticipates will or may occur in the future are forward-looking statements. Such statements are based on certain assumptions and assessments made by management of the Company in light of its experience and its perception of historical trends, current conditions, expected future developments and other factors it believes to be appropriate. The forward-looking statements included in this Prospectus are also subject to number of material risks and uncertainties, including but not limited to economic, competitive, governmental and technological factors affecting the Company's operations, markets, products, services and prices, and other factors discussed in the Company's filings under the Securities Act and the Exchange Act. Prospective investors are cautioned that such forward-looking statements are not guarantees of future performance and that actual results, developments and business decisions may differ from those envisaged by such forward-looking statements. SEC POSITION ON INDEMNIFICATION Article Eighth of the Certificate of Incorporation, as amended, of the Company provides, in detail, for the indemnification of directors, officers and employees of the Company to the fullest extent permitted under the General Corporation Law of the State of Delaware. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. 8 9 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL John J. Clair, a director and option holder of the registrant. See "Legal Matters." ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the General Corporation Law of the State of Delaware (the "GCL") provides that a Delaware corporation has the power to indemnify its officers and directors in certain circumstances. Subsection (a) of the GCL empowers a corporation to indemnify any director or officer, or former director or officer who was or is a party or is threatened to be made a party of any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding provided that such director or officer acted in good faith and in a manner 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 reasonable cause to believe his conduct was unlawful. Subsection (b) of Section 145 empowers a corporation to indemnify any officer or director, or former officer or director, who was or is a party or is threatened to be made a party to any threatened, pending or completed action, or suit by or in the right of the corporation to procure a judgment in its factor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit provided that such director or officer acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which such director or officer shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which action or suit was brought shall determine that despite the adjudication of liability such director or officer is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 145 further provides that to the extent a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145 or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection therewith; that indemnification provided by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the corporation is empowered to purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him or her and incurred by him or her in any such capacity or arising out of his or her status as such whether or not the corporation would have the power to indemnify him, against such liabilities under Section 145. Article Eighth of the Certificate of Incorporation, as amended, of the Company (the "Certificate") provides, in detail, for the indemnification of directors, officers and employees of the Company to the fullest extent permitted under the GCL. Section 102(b)(7) of the GCL enables a Delaware corporation to provide in its certificate of incorporation for the elimination or limitation of the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Any such provision cannot eliminate or limit a director's liability (1) for any breach of the director's duty of loyalty to the Corporation or its stockholders; (2) for acts or omissions not in good faith which involve intentional misconduct or a knowing violation of law; (3) under Section 174 of the GCL (which imposes liability on directors for unlawful payment of 9 10 dividends or unlawful sock purchase or redemption); or (4) for any transaction from which the director derived an improper personal benefit. Article Eighth of the Certificate eliminates the liability of a director of the Company to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director to the full extent permitted by the GCL. The Company carries policies of insurance which cover the individual directors and officers of the Company for legal liability and which would pay on behalf of the Company for expenses of indemnification of directors and officers in accordance with the Certificate of Incorporation. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS EXHIBIT NUMBER DESCRIPTION 4.1 Health Care and Retirement Corporation Amended Restricted Stock Plan (filed on pages A1 to A9 of Health Care and Retirement's Proxy Statement dated March 25, 1997 in connection with its Annual Meeting held on May 6, 1997 and incorporated by reference herein) *4.2 First Amendment to Health Care and Retirement Corporation Amended Restricted Stock Plan *5 Opinion of Latham & Watkins *23.1 Consent of Independent Auditors *23.2 Consent of Latham & Watkins (included in opinion filed as Exhibit 5) - ---------------------- * Filed herewith ITEM 9. UNDERTAKINGS (a) The undersigned registrant hereby undertakes to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement; (1) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (2) 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 Registration Statement; (3) that, for the purpose of determining any liability under the Securities Act of 1933, each 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; and (4) 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 Plan; provided, however, that paragraphs (a)(1) and (a)(2) 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 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. 10 11 (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 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 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 1993 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 Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than 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 against the registrant 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. 11 12 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, there unto duly authorized, in the City of Toledo, State of Ohio, on September 24, 1998. HEALTH CARE AND RETIREMENT CORPORATION By: /s/ R. Jeffrey Bixler ------------------------------------ R. Jeffrey Bixler, Vice President, General Counsel and Secretary Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE - --------- ----- ---- /s/ John J. Clair ) - -------------------- Director ) John J. Clair ) ) /s/ Joseph H. Lemieux ) - -------------------- Director ) Joseph H. Lemieux ) September 24, 1998 ) /s/ Geoffrey G. Meyers ) - -------------------- Executive Vice President, Chief Financial ) Geoffrey G. Meyers Officer and Treasurer (Principal Financial ) Officer) ) /s/ Spencer C. Moler ) - -------------------- Vice President and Controller (Principal ) Spencer C. Moler Accounting Officer) ) ) /s/ Paul A. Ormond - -------------------- Chairman of the Board, President and Chief ) Paul A. Ormond Executive Officer (Principal Executive ) Officer) ) /s/ Robert G. Siefers ) - -------------------- Director ) Robert G. Siefers ) ) /s/ M. Keith Weikel ) - -------------------- Senior Executive Vice President and Chief ) M. Keith Weikel Operating Officer; Director ) ) /s/ Thomas L. Young ) - -------------------- Director ) Thomas L. Young )
13 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION ------- ----------- 4.1 Health Care and Retirement Corporation Amended Restricted Stock Plan (filed on pages A1 to A9 of Health Care and Retirement's Proxy Statement dated March 25, 1997 in connection with its Annual Meeting held on May 6, 1997 and incorporated by reference herein) *4.2 First Amendment to Health Care and Retirement Corporation Amended Restricted Stock Plan *5 Opinion of Latham & Watkins *23.1 Consent of Independent Auditors *23.2 Consent of Latham & Watkins (included in opinion file as Exhibit 5)
- ---------------------- * Filed herewith EX-4.2 2 FIRST AMENDMENT TO HEALTH CARE AND RETIREMENT CORP 1 Exhibit 4.2 FIRST AMENDMENT TO HEALTH CARE AND RETIREMENT CORPORATION AMENDED RESTRICTED STOCK PLAN THIS FIRST AMENDMENT TO THE HEALTH CARE AND RETIREMENT CORPORATION AMENDED RESTRICTED STOCK PLAN, dated as of , 1998, is made and adopted by HEALTH CARE AND RETIREMENT CORPORATION, a Delaware corporation (the "Company"). Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Plan (as defined below). WHEREAS, the Company has adopted the Health Care and Retirement Corporation Amended Restricted Stock Plan (the "Plan") for the benefit of its employees and officers; WHEREAS, effective October 14, 1991, the Company adopted the Health Care and Retirement Corporation Restricted Stock Plan and, effective May 6, 1997, the Company adopted the Health Care and Retirement Corporation Amended Restricted Stock Plan; WHEREAS, the Company desires to amend the Plan so as to increase the number of shares reserved for issuance thereunder; and WHEREAS, this First Amendment was duly adopted by a resolution of the Board of Directors of the Company dated as of August , 1998, subject to approval thereof by the Company's shareholders. NOW THEREFORE, in consideration of the foregoing, the Company hereby amends the Plan as follows: 1. Section 2.1 of the Plan is hereby amended by deleting the second sentence of such Section in its entirety and replacing it with the following sentence: "The aggregate number of such shares which may be issued as Restricted Stock shall not exceed 1,892,866." 2. This First Amendment shall be and is hereby incorporated in and forms a part of the Plan. 3. This First Amendment shall be effective as of the effective time of the merger of Manor Care, Inc. ("Manor Care") with and into Catera Acquisition Corp. ("Merger Sub"), a wholly owned subsidiary of the Company, with Manor Care being the surviving corporation, pursuant to that certain Amended and Restated Agreement and Plan of Merger dated as of June 10, 1998 by and among Manor Care, Merger Sub and the Company. 4. Except as set forth herein, the Plan shall remain in full force and effect. IN WITNESS WHEREOF, the Company has caused this amendment to the Plan to be executed by its duly authorized officer as of August 13, 1998. HEALTH CARE AND RETIREMENT CORPORATION By: /s/ R. Jeffrey Bixler -------------------------------- Title: Vice President and Secretary 1 2 I hereby certify that the foregoing amendment to the Plan was duly approved by the shareholders of Health Care and Retirement Corporation on September 24, 1998. Executed on this 24th day of September, 1998. By: /s/ R. Jeffrey Bixler ------------------------------- Title: Vice President and Secretary H-2 EX-5 3 OPINION OF LATHAM & WATKINS 1 [LATHAM & WATKINS LETTERHEAD] September 24, 1998 Health Care and Retirement Corporation One SeaGate Toledo, Ohio 43604-2616 Re: Registration Statement on Form S-8 Health Care and Retirement Corporation Amended Restricted Stock Plan Ladies and Gentlemen: We have acted as your special counsel in connection with the above-captioned Registration Statement (the "Registration Statement") with respect to the offer and sale by certain selling stockholders of up to 337,750 shares (the "Shares") of common stock of Health Care and Retirement Corporation, par value $.01 per share, pursuant to the Health Care and Retirement Corporation Amended Restricted Stock Plan. We are familiar with the proceedings taken and proposed to be taken by you in connection with the authorization, issuance and sale of the Shares, and for the purposes of this opinion, have assumed such proceedings will be timely completed in the manner presently proposed. In addition, we have made such legal and factual examinations and inquires, including an examination of originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records and instruments, as we have deemed necessary or appropriate for purposes of this opinion. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to authentic original documents of all documents submitted to us as copies. 2 LATHAM & WATKINS Health Care and Retirement Corporation September 24, 1998 Page 2 We are opining herein as to the effect on the subject transaction of the General Corporation Law of the State of Delaware, and we express no opinion with respect to the applicability thereto, or the effect thereon, of any other laws. Subject to the foregoing, it is our opinion that the Shares have been duly authorized and, upon issuance, delivery and payment therefor in the manner contemplated by the Registration Statement, will be validly issued, fully paid and nonassessable. We consent to your filing this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Latham & Watkins EX-23.1 4 CONSENT OF INDEPENDENT AUDITORS 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-8) and related Prospectuses pertaining to the Health Care and Retirement Corporation Amended Restricted Stock Plan and to the incorporation by reference therein of our report dated January 27, 1998 with respect to the consolidated financial statements and schedule of Health Care and Retirement Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 1997, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Toledo, Ohio September 23, 1998 -----END PRIVACY-ENHANCED MESSAGE-----