-----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, OAQ27spG3iCq9zGnr5Zj5BFPD1YR/I6XsdfSRDL+maw3I18kIqf0kYp51eJNxAQ4 6gJNjLF5uY19EiNmNTHvpg== 0000950124-98-005211.txt : 19980925 0000950124-98-005211.hdr.sgml : 19980925 ACCESSION NUMBER: 0000950124-98-005211 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 19980924 EFFECTIVENESS DATE: 19980924 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: 333-64181 FILM NUMBER: 98714291 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 24, 1998 Registration No. 33-___ ================================================================================ 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 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS HEALTH CARE AND RETIREMENT CORPORATION STOCK OPTION PLAN FOR KEY EMPLOYEES (FULL TITLE OF THE PLANS) ------------------ 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 (1) share (2) price - ---------------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 3,500,000 Shares $24.25 $84,875,000 $25,038.13 per share ============================================================================================================================
(1) The Health Care and Retirement Corporation Stock Option Plan for Outside Directors (the "Outside Directors' Plan") authorizes the issuance of a maximum of 800,000 shares, 300,000 of which have been registered on Health Care and Retirement Corporation's Registration Statement on Form S-8 (File No. 33-48885), filed with the Commission on June 26, 1992 (each number as adjusted by a 2-for-1 stock split in March 1993 and a 3-for-2 stock split in June 1996). The Health Care and Retirement Corporation Amended Stock Option Plan for Key Employees (the "Stock Option Plan") authorizes the issuance of a maximum of 11,199,000 shares of Common Stock, 8,199,000 of which have been registered on Health Care and Retirement Corporation's Registration Statements on Form S-8 (File No. 33-48885 and File No. 33-83324), filed with the Commission on June 26, 1992 and August 26, 1994, respectively (each number as adjusted by a 2-for-1 stock split in March 1993 and a 3-for-2 stock split in June 1996). (2) 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 Company's Common Stock on September 17, 1998, which was $24.25 per share. ================================================================================ 2 EXPLANATORY NOTE In accordance with General Instruction E to Form S-8, Health Care and Retirement Corporation's Registration Statements on Form S-8 (File No. 33-48885 and File No. 33-83324), filed with the Commission on June 26, 1992 and August 26, 1994, respectively, are incorporated as of their respective date in this Registration Statement by reference. 3 EXHIBITS EXHIBIT NUMBER DESCRIPTION *4.1 First Amendment to Stock Option Plan *4.2 Second Amendment to Stock Option Plan *4.3 Third Amendment to Stock Option Plan *4.4 First Amendment to Outside Directors' Plan *4.5 Second Amendment to Outside Directors' Plan *4.6 Third Amendment to Outside Director's 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 4 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 )
5 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION - ------ ----------- *4.1 First Amendment Stock Option Plan *4.2 Second Amendment to Stock Option Plan *4.3 Third Amendment to Stock Option Plan *4.4 First Amendment to Outside Directors' Plan *4.5 Second Amendment to Outside Directors' Plan *4.6 Third Amendment to Outside Directors' 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-4.1 2 FIRST AMENDMENT TO STOCK OPTION PLAN 1 EXHIBIT 4.1 FIRST AMENDMENT TO HEALTH CARE AND RETIREMENT CORPORATION AMENDED STOCK OPTION PLAN FOR KEY EMPLOYEES ----------------------------------- Pursuant to the authority reserved to the Compensation Committee (the "Committee") of the Board of Directors of Health Care and Retirement Corporation (the "Company") under Section 7.2 of the Health Care and Retirement Corporation Amended Stock Option Plan for Key Employees (the "Plan"), the Committee hereby amends the Plan as follows: 1. Article I, Section 1.20 of the Plan is amended in its entirety, to read as follows: SECTION 1.20 - SUBSIDIARY ------------------------- "Subsidiary" shall mean any corporation in an unbroken chain of corporations beginning with the Company if each of the corporations other than the last corporation in the unbroken chain then owns stock possession 50% of more of the total combined voting power of all classes of stock in one of the other corporations in such chain. "Subsidiary" shall also mean any partnership in which the Company and/or any Subsidiary owns 50% or more of the capital or profit interests. 2. This First Amendment shall be effective on or as of August 23, 1994. In all other respect the Plan shall remain in full force and effect as originally adopted. IN WITNESS WHEREOF, the Committee has caused this First Amendment to be executed by a duly authorized officer of the Company, as of this 23rd day of August, 1994. HEALTH CARE AND RETIREMENT CORPORATION By: /s/ R. Jeffrey Bixler ------------------------ R. Jeffrey Bixler Vice President EX-4.2 3 SECOND AMENDMENT TO STOCK OPTION PLAN 1 EXHIBIT 4.2 SECOND AMENDMENT TO HEALTH CARE AND RETIREMENT CORPORATION AMENDED STOCK OPTION PLAN FOR KEY EMPLOYEES ----------------------------------- Pursuant to the authority reserved to the Compensation Committee (the "Committee") of the Board of Directors of Health Care and Retirement Corporation (the "Company") under Section 7.2 of the Health Care and Retirement Corporation Amended Stock Option Plan for Key Employees (the "Plan"), the Committee hereby amends the Plan as follows: 1. Article I of the Plan is amended by the addition thereto of a new Section 1.22, to read, in its entirety, as follows: SECTION 1.22 - TRANSFERABLE OPTION ---------------------------------- "Transferable Option" means a Non-Qualified Option which by its terms, as determined by the Committee and set forth in the applicable Option Agreement (or an amendment thereto), may be transferred by the Optionee, in writing and with written notice thereof to the Committee, by gift, without the receipt of any consideration: (i) to such Optionee's spouse; (ii) to any child or more remote lineal descendant of such Optionee or to the spouse of any child or more remote lineal descendant; or (iii) to any trust, custodianship, or other similar fiduciary relationship maintained for the benefit of any one or more of such persons, but is otherwise nontransferable except by will or other applicable laws of descent and distribution. 2. Article I of the Plan is further amended by the addition thereto of a new Section 1.23, to read, in its entirety, as follows: SECTION 1.23 - TRANSFEREE ------------------------- "Transferee" shall mean any person or entity to whom or to which an Optionee has transferred a Transferable Option. 3. Section 3.3(a)(iii) of the Plan is amended to read, in its entirety, as follows: (iii) Determine the terms and conditions of such Options, consistent with the Plan, including, but not limited to such terms and conditions as may by required in order to make a Non-Qualified option a Transferable Option. 4. Section 4.1 of the Plan is amended by the addition thereto of the 2 following: Stock Option Agreements evidencing Transferable Options shall contain (or may be amended to contain) such terms and conditions as may be necessary to meet the definition of a Transferable Option under Section 1.22 hereof. 5. Section 5.1 of the Plan is amended to read, in its entirety, as follows: SECTION 5.1 - PERSONS ELIGIBLE TO EXERCISE ------------------------------------------ During the lifetime of the Optionee, only he or his Transferee, if any, may exercise an Option (or any portion thereof) granted to him. After the death of the Optionee, any exercisable portion of any Option may, prior to the time when such portion becomes unexercisable under the Plan or the applicable Stock Option Agreement, be exercised by his Transferee, if any, or by his personal representative or any other person empowered to do so under the deceased Optionee's will or under the then applicable laws of descent and distribution. All of the terms and conditions of any option in the hands of the Optionee during his lifetime shall be and remain fully applicable and binding on his Transferee, if any, and on any other person who may become eligible to exercise such Option. 6. Section 7.1 of the Plan is amended to read, in its entirety, as follows: SECTION 7.1 - OPTIONS NOT TRANSFERABLE -------------------------------------- No Option or interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Optionee or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgement, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that nothing in this Section 7.1 shall prevent any transfer of a transfer by will or by the applicable laws of descent and distribution. 7. This Second Amendment shall be effective on or as February 1, 1996. In all other respects the Plan shall remain in full force and effect as 2 3 originally adopted. IN WITNESS WHEREOF, the Committee has caused this Second Amendment to be executed by a duly authorized officer of the Company, as of this 1st day of February, 1996. HEALTH CARE AND RETIREMENT CORPORATION By: /s/ R. Jeffrey Bixler ----------------------- R. Jeffrey Bixler Vice President 3 EX-4.3 4 THIRD AMENDMENT TO STOCK OPTION PLAN 1 THIRD AMENDMENT TO HEALTH CARE AND RETIREMENT CORPORATION AMENDED STOCK OPTION PLAN FOR KEY EMPLOYEES THIS THIRD AMENDMENT TO HEALTH CARE AND RETIREMENT CORPORATION AMENDED STOCK OPTION PLAN FOR KEY EMPLOYEES, 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 Stock Option Plan for Key Employees (the "Plan") for the benefit of its key employees; WHEREAS, effective as of August 23, 1994, the Company amended the Plan pursuant to that certain First Amendment to Health Care and Retirement Corporation Amended Stock Option Plan for Key Employees, and effective as of February 1, 1996, the Company further amended the Plan pursuant to that certain Second Amendment to Health Care and Retirement Corporation Amended Stock Option Plan for Key Employees; WHEREAS, the Company desires to amend the Plan so as to increase the number of shares reserved for issuance thereunder; and WHEREAS, this Third 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 upon exercise of Options shall not exceed 11,199,000." 2. This Third Amendment shall be and is hereby incorporated in and forms a part of the Plan. 3. This Third 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, General Counsel and Secretary 2 EX-4.4 5 FIRST AMENDMENT TO OUTSIDE DIRECTORS' PLAN 1 EXHIBIT 4.4 FIRST AMENDMENT TO HEALTH CARE AND RETIREMENT CORPORATION STOCK OPTION PLAN FOR OUTSIDE DIRECTORS Pursuant to the authority of the Board of Directors under Section 7.2 of the Health Care and Retirement Corporation Stock Option Plan for Outside Directors, the Board hereby amends the Plan as follows: 1. Article I of the Plan is amended by the addition thereto of a new Section 1.18, to read, in its entirety, as follows: SECTION 1.18 - COMMITTEE "Committee" shall mean a committee of the Board of Directors consisting of members of the Board of Directors, appointed by the Chairman, who are not Outside Directors of the Corporation. The committee shall perform the functions and have the authority of the Board as set forth in Section 7.2 hereof. 2. Section 7.2 of the Plan is amended to read, in its entirety, as follows: SECTION 7.2 - AMENDMENT, SUSPENSION OR TERMINATION OF THE PLAN The Plan may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Committee. However, without approval of the Company's stockholders given within twelve months before or after the action by the Committee, no action of the Committee may, except as provided in Section 2.3, increase any limit imposed in Section 2.1 on the maximum number of shares which may be issued on exercise of Options, materially modify the eligibility requirements of Section 3.1, reduce the minimum Option price requirements of Section 4.2, extend the limit imposed in this Section 7.2 on the period during which Options may be granted or amend or modify the Plan in a manner requiring stockholder approval under Rule 16b-3. Notwithstanding anything to the contrary contained herein, the Committee, with respect to the Plan or any Option, shall not: (i) amend or modify any provision concerning the amount, price and timing of any Option (including, without limitation, the provisions of Sections 3.2 and 4.2 of the Plan) more than once every six months, other than to comport with changes in the Code, the Employee Retirement Income Security Act of 1974, as amended, or the rules thereunder; or (ii) otherwise amend or modify the Plan or any Option in any manner inconsistent with the requirements of Rule 16b-3(c) (2) (ii). Neither the amendment, 2 suspension nor termination of the Plan shall, without the consent of the holder of the Option, alter or impair any rights or obligations under any Option theretofore granted. No Option may be granted during any period of suspension nor after termination of the Plan, and in no event may any Option be granted under this Plan after the first to occur of the following events: (a) The expiration of ten years from the date the Plan is adopted by the Board; or (b) The expiration of ten years from the date the Plan is approved by the Company's stockholders under Section 7.3. 3. This First Amendment shall be effective on or as of February 1, 1996. In all other respects the Plan shall remain in full force and effect as originally adopted. IN WITNESS WHEREOF, the Board of Directors has caused this First Amendment to be executed by a duly authorized officer of the Company, as of this 1st day of February, 1996. HEALTH CARE AND RETIREMENT CORPORATION By: /s/ Paul A. Ormond ------------------------ Paul A. Ormond, Chairman Attest: By: /s/ R. Jeffrey Bixler ------------------------------ R. Jeffrey Bixler, Secretary 2 EX-4.5 6 SECOND AMENDMENT TO OUTSIDE DIRECTORS' PLAN 1 EXHIBIT 4.5 SECOND AMENDMENT TO THE HEALTH CARE AND RETIREMENT CORPORATION STOCK OPTION PLAN FOR OUTSIDE DIRECTORS --------------------------------------- Pursuant to the authority reserved to the Committee (the "Committee") of the Board of Directors of Health Care and Retirement Corporation (the "Company") appointed to administer the Stock Option Plan for Outside Directors ("Plan") under Section 7.2 of the Plan, the Committee hereby amends the Plan as follows: 1. Article 1 of the Plan is amended by the addition thereto of a new Section 1.19, to read, in its entirety, as follows: SECTION 1.19 - TRANSFERABLE OPTION ---------------------------------- "Transferable Option" means an Option which by its terms, as determined by the Committee and as set forth in the applicable Option Agreement (or an amendment thereto), may be transferred by the Optionee, in writing and with written notice thereof to the Committee, by gift, without the receipt of any consideration: (i) to such Optionee's spouse; (ii) to any child or more remote lineal descendant of such Optionee or to the spouse of any such child or more remote lineal descendant; or (iii) to any trust, custodianship, or other similar fiduciary relationship maintained for the benefit of any one or more of such persons, but is otherwise nontransferable except by will or the applicable laws of descent and distribution. 2. Article I of the Plan is further amended by the addition thereto of a new Section 1.20, to read, in its entirety, as follows: SECTION 1.20 - TRANSFEREE ------------------------- "Transferee" shall mean any person or entity to whom or to which an Optionee has transferred a Transferable Option. 3. Article III of the Plan is amended to read, in its entirety, as follows: (C) The Committee shall determine from time to time, in its absolute discretion, the terms and conditions of such Options, consistent with the Plan, including, but not limited to such terms and conditions as may be required in order to make an Option a Transferable Option. 4. Section 4.1 of the Plan is amended by the addition thereto of the follows: 2 Stock Option Agreements evidencing Transferable Options shall contain (or may be amended contain) such terms and conditions as may be necessary to meet the definition of a Transferable Option under Section 1.18 hereof. 5. Section 5.1 of the Plan is amended to read, in its entirety, as follows: SECTION 5.1 - PERSONS ELIGIBLE TO EXERCISE ------------------------------------------ During the lifetime of the Optionee, only he or his Transferee, if any, may exercise an option (or any portion thereof) granted to him. After the death of the Optionee, any exercisable portion of any Option may, prior to the time when such portion becomes unexercisable under the Plan or the applicable Stock Option Agreement, be exercised by his Transferee, if any, or by his personal representative or any other person empowered to do so under the deceased and distribution. All of the terms and conditions of any Option in the hands of the Optionee's will under the then applicable laws of descent and distribution. All of the terms and conditions of any Option in the hands of the Optionee during his lifetime shall be and remain fully applicable and binding on his Transferee, if any, and on any other person who may become eligible to exercise such Option. 6. Section 7.1 of the Plan is amended to read, in its entirety, as follows: SECTION 7.1 - OPTIONS NOT TRANSFERABLE -------------------------------------- No Option or interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Optionee or his or his successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law by judgement, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall null and void and of no effect; provided, however, that nothing in this Section 7.1 shall prevent any transfer of Transferable Option in accordance with its terms of any transfer by will of by the applicable laws of descent and distribution. 7. This Second Amendment shall be effective on or as of February 1, 1996. In all other respects the Plan shall remain in full force and effect as originally adopted. IN WITNESS WHEREOF, the Committee has cause this Second Amendment to be executed by a duly authorized officer of the Company, as of this 1st day of February, 1996. 2 3 HEALTH CARE AND RETIREMENT CORPORATION By: /s/ Paul A. Ormond ------------------------- Paul A. Ormond, Chairman Attest: By: /s/ R. Jeffrey Bixler ---------------------------- R. Jeffrey Bixler, Secretary 3 EX-4.6 7 THIRD AMENDMENT TO OUTSIDE DIRECTORS' PLAN 1 Exhibit 4.6 THIRD AMENDMENT TO HEALTH CARE AND RETIREMENT CORPORATION STOCK OPTION PLAN FOR OUTSIDE DIRECTORS THIS THIRD AMENDMENT TO THE HEALTH CARE AND RETIREMENT CORPORATION STOCK OPTION PLAN FOR OUTSIDE DIRECTORS, 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 Amended Health Care and Retirement Corporation Stock Option Plan for Outside Directors (the "Plan") for the benefit of its outside directors; WHEREAS, effective as of February 1, 1996, the Company amended the Plan pursuant to that certain First Amendment to Health Care and Retirement Corporation Stock Option Plan for Outside Directors, and effective as of February 1, 1996, the Company further amended the Plan pursuant to that certain Second Amendment to Health Care and Retirement Corporation Stock Option Plan for Outside Directors; WHEREAS, the Company desires to amend the Plan so as to increase the number of shares reserved for issuance thereunder; and WHEREAS, this Third 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 upon exercise of Options shall not exceed 800,000 shares." 2. This Third Amendment shall be and is hereby incorporated in and forms a part of the Plan. 3. This Third 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 ---------------------- 2 EX-5 8 OPINION OF LATHAM & WATKINS 1 EXHIBIT 5 [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 Stock Option Plans 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 of up to 3,500,000 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 Stock Option Plan for Outside Directors and the Health Care and Retirement Corporation Amended Stock Option Plan for Key Employees. 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. 2 LATHAM & WATKINS Health Care and Retirement Corporation September 24, 1998 Page 2 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. 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 9 CONSENT OF INDEPENDENT AUDITORS 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) and related Prospectuses pertaining to the Health Care and Retirement Corporation Stock Option Plan for Outside Directors and the Health Care and Retirement Corporation Amended Stock Option Plan for Key Employees 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-----