-----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, S2uHNZuJsYGjb0Wu6wZN8HYDlHp5v+BIFiKlsZrQd1T74PbjIo3E997iBUxeCekg R9FOVet4wTt/4e+cP8KcPA== 0000950144-99-006454.txt : 19990519 0000950144-99-006454.hdr.sgml : 19990519 ACCESSION NUMBER: 0000950144-99-006454 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990518 EFFECTIVENESS DATE: 19990518 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LINCARE HOLDINGS INC CENTRAL INDEX KEY: 0000882235 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HOME HEALTH CARE SERVICES [8082] IRS NUMBER: 510331330 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-78719 FILM NUMBER: 99629860 BUSINESS ADDRESS: STREET 1: 19337 US 19 N STE 500 CITY: CLEARWATER STATE: FL ZIP: 34624 BUSINESS PHONE: 8135307700 MAIL ADDRESS: STREET 1: 19337 US 19 NORTH STE 500 CITY: CLEARWATER STATE: FL ZIP: 34624 S-8 1 LINCARE HOLDINGS INC. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 18, 1997 REGISTRATION NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------ LINCARE HOLDINGS INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) STATE OF DELAWARE 19337 U.S. 19 NORTH 51-0331330 (State or Other CLEARWATER, FL 33764 (I.R.S. Employer Jurisdiction of (Address, including zip Identification Incorporation or code of principal Number) Organization) executive office) LINCARE HOLDINGS INC. 1998 STOCK PLAN (Full title of the plan) ANGELA P. BRYANT, ESQUIRE LINCARE HOLDINGS INC. 19337 U.S. 19 NORTH CLEARWATER, FL 33764 727-530-7700 (Name, address, and telephone number, of agent for service) ------------------ CALCULATION OF REGISTRATION FEE
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION BE REGISTERED REGISTERED PER SHARE PRICE(1) FEE - ------------------------------------------------------------------------------- COMMON STOCK, PAR VALUE, 500,000 $0.01 SHARES (2) VARIABLE $12,000,000 $3,336.00
(1) Computed solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act of 1933, based upon the closing price of the Registrant's common stock on May 14, 1999 ($24.00) as reported by NASDAQ. (2) Plus such additional number of shares as may be required pursuant to the plan in the event of a stock split, recapitalization or other similar event. ------------------ Approximate date of proposed sales pursuant to the plan: As soon as practicable after this Registration Statement becomes effective. ------------------ 2 LINCARE HOLDINGS INC. Cross Reference Sheet pursuant to Regulation S-K, Item 501(b) between Registration Statement (S-8) and Prospectus
LOCATION OF CAPTIONS ITEM ON FORM S-8 IN PROSPECTUS ---------------- -------------------- 1. Plan Information Lincare Holdings Inc. 1998 Stock Plan 2. Registrant Information and Incorporation of Employee Plan Annual Certain Documents by Information Reference
3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed by the Company with the Commission are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1998. (b) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1999. (c) The information set forth under the caption "Description of Capital Stock" on pages 38 and 39 of the Company's Prospectus dated December 17, 1992 contained in the Company's Registration Statement on Form S-1 (number 33-55260). All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment that indicates that all securities offered 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 the filing of such documents. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law (the "GCL") provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation--a "derivative action"), if they 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 reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys' fees) incurred in connection with the defense or settlement of such actions, and the statute 2 4 requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation's charter, by-laws, disinterested director vote, stockholder vote, agreement or otherwise. Article V, Section 1 of the Registrant's By-laws requires the Registrant to indemnify its officers and directors to the fullest extent permitted under the GCL. Article Seventh of the Registrant's Certificate of Incorporation and Article V, Section 1 of the Registrant's By-Laws provide that no director shall be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the GCL (involving certain unlawful dividends or unlawful stock repurchases or redemptions) or (iv) for any transaction from which the director derived an improper personal benefit. Any amendment to or repeal of such Articles shall not adversely affect any right or protection of a director of the Registrant for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal. The Registrant maintains directors' and officers' liability insurance with policy limits of $5,000,000.
ITEM 8. EXHIBITS. 5 Opinion re legality 23.1 Consent of Independent Certified Public Accountants 23.2 Consent of Legal Counsel (included as part of Exhibit 5) 99 Powers of Attorney
ITEM 9. UNDERTAKINGS. A. UNDERTAKINGS RELATING TO DELAYED OR CONTINUOUS OFFERINGS OF SECURITIES (1) 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 to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (2) The undersigned registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective 3 5 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. (3) The undersigned registrant hereby undertakes 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. UNDERTAKING RELATING TO THE INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE 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 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. UNDERTAKING RELATING TO THE INCORPORATION OF ANNUAL REPORT TO STOCKHOLDERS The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security-holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. D. UNDERTAKING RELATING TO REGISTRATION STATEMENT ON FORM S-8 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 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 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. 4 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, on May 18, 1999. LINCARE HOLDINGS INC. By: /s/ John P. Byrnes ---------------------------- John P. Byrnes, President 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 dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ John P. Byrnes May 18, 1999 - ----------------------- Director, Chief ---------------- John P. Byrnes Executive Officer /s/ Paul G. Gabos May 18, 1999 - ----------------------- Chief Financial ---------------- Paul G. Gabos and Accounting Officer * May 18, 1999 - ----------------------- Director ---------------- James T. Kelly * May 18, 1999 - ----------------------- Director ---------------- Chester B. Black * May 18, 1999 - ----------------------- Director ---------------- Frank T. Cary * May 18, 1999 - ----------------------- Director ---------------- Thomas O. Pyle * May 18, 1999 - ----------------------- Director ---------------- William F. Miller, III * By: /s/ John P. Byrnes --------------------------- Attorney in Fact
5 7 EXHIBIT INDEX
Exhibit Number Title - ------- ----- 5 Opinion re legality 23.1 Consent of Independent Certified Public Accountants 23.2 Consent of Legal Counsel (included as part of Exhibit 5) 99 Powers of Attorney
6 EX-5 2 OPINION RE LEGALITY 1 EXHIBIT 5 [THOMAS P. MCNAMARA, P.A. LETTERHEAD] May 18, 1999 Securities and Exchange Commission Division of Corporation Finance Filing Room #1004 450 Fifth Street, N.W. Washington, D.C. 20549 Re: Lincare Holdings Inc. 1998 Stock Plan Ladies and Gentlemen: I have reviewed and am familiar with the referenced plan, and the certificate of incorporation and bylaws of Lincare Holdings Inc. In my opinion, upon sale pursuant to an effective Registration Statement on Form S-8, the securities to be issued under the plan will be validly issued, fully paid and nonassessable. I hereby consent to the inclusion of my opinion in such Registration Statement on Form S-8. Sincerely, THOMAS P. MCNAMARA, P.A. By: /s/ Thomas P. McNamara --------------------------- Thomas P. McNamara EX-23.1 3 CONSENT OF INDEPENDENT ACCOUNTANTS 1 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Directors Lincare Holdings Inc. We consent to incorporation by reference in the registration statement (No. 333- ) on Form S-8 of Lincare Holdings Inc. of our report dated February 9, 1999, relating to the consolidated balance sheets of Lincare Holdings Inc. and subsidiaries as of December 31, 1998 and 1997, and the related consolidated statements of operations, stockholders' equity, and cash flows for each of the years in the three-year period ended December 31, 1998, and related schedule, which report appears in the December 31, 1998, annual report on Form10-K of Lincare Holdings Inc. KPMG LLP St. Petersburg, Florida May 18, 1999 EX-99 4 POWERS OF ATTORNEY 1 EXHIBIT 99 SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that I, WILLIAM F. MILLER,III, a legal resident of the State of Texas, desiring to execute a SPECIAL POWER OF ATTORNEY, have made, constituted and appointed, and by these presents do make, constitute and appoint JOHN P. BYRNES and PAUL G. GABOS, or either of them, with full power of substitution, my Attorney-In-Fact for me and in my name, place and stead to do and perform the following acts, deeds, matters and things as he deems advisable in the judgment of my said Attorney-In-Fact as fully and effectually to all intents and purposes as I could do if personally present and acting: REGISTRATION STATEMENTS ON FORM S-8 To execute and deliver all documents and to carry out with full power and authority every act whatsoever requisite or necessary to be done by or on behalf of the undersigned, including the execution of the Registration Statement on Form S-8 and any documents incident thereto, to register with the Securities and Exchange Commission the additional common stock of Lincare Holdings Inc. which may be issued pursuant to the Lincare Holdings Inc. 1998 Stock Plan, as amended March 10, 1999. GENERAL PROVISIONS All business transacted hereunder for me shall be transacted in my name, and all endorsements and instruments executed by my Attorney-In-Fact for the purpose of carrying out any of the foregoing powers, shall contain my name, followed by that of my Attorney-In-Fact and the designation "Attorney-In-Fact." I hereby ratify and confirm all lawful acts done by my said Attorney-In-Fact pursuant to this Special Power of Attorney, and I direct that this Special Power of Attorney shall continue in effect until terminated by me in writing or by operation of law. If the authority contained herein shall be revoked or terminated by operation of law without notice, I hereby agree for myself, executors, administrators, heirs and assigns, in consideration of my Attorney-In-Fact's willingness to act pursuant to this Special Power of Attorney, to save and hold my Attorney-In-Fact harmless from any loss suffered or any liability incurred by him in so acting after such revocation or termination without notice. ------------------------------- WILLIAM F. MILLER, III 2 SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that I, JAMES T. KELLY, a legal resident of the State of Connecticut, desiring to execute a SPECIAL POWER OF ATTORNEY, have made, constituted and appointed, and by these presents do make, constitute and appoint JOHN P. BYRNES and PAUL G. GABOS, or either of them, with full power of substitution, my Attorney-In-Fact for me and in my name, place and stead to do and perform the following acts, deeds, matters and things as he deems advisable in the judgment of my said Attorney-In-Fact as fully and effectually to all intents and purposes as I could do if personally present and acting: REGISTRATION STATEMENTS ON FORM S-8 To execute and deliver all documents and to carry out with full power and authority every act whatsoever requisite or necessary to be done by or on behalf of the undersigned, including the execution of the Registration Statement on Form S-8 and any documents incident thereto to register with the Securities and Exchange Commission the additional common stock of Lincare Holdings Inc. which may be issued pursuant to the Lincare Holdings Inc. 1998 Stock Plan, as amended March 10, 1999. GENERAL PROVISIONS All business transacted hereunder for me shall be transacted in my name, and all endorsements and instruments executed by my Attorney-In-Fact for the purpose of carrying out any of the foregoing powers, shall contain my name, followed by that of my Attorney-In-Fact and the designation "Attorney-In-Fact." I hereby ratify and confirm all lawful acts done by my said Attorney-In-Fact pursuant to this Special Power of Attorney, and I direct that this Special Power of Attorney shall continue in effect until terminated by me in writing or by operation of law. If the authority contained herein shall be revoked or terminated by operation of law without notice, I hereby agree for myself, executors, administrators, heirs and assigns, in consideration of my Attorney-In-Fact's willingness to act pursuant to this Special Power of Attorney, to save and hold my Attorney-In-Fact harmless from any loss suffered or any liability incurred by him in so acting after such revocation or termination without notice. ------------------------------ JAMES T. KELLY 3 SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that I, CHESTER B. BLACK, a legal resident of the State of Massachusetts, desiring to execute a SPECIAL POWER OF ATTORNEY, have made, constituted and appointed, and by these presents do make, constitute and appoint JOHN P. BYRNES and PAUL G. GABOS, or either of them, with full power of substitution, of my Attorney-In-Fact for me and in my name, place and stead to do and perform the following acts, deeds, matters and things as he deems advisable in the judgment of my said Attorney-In-Fact as fully and effectually to all intents and purposes as I could do if personally present and acting: REGISTRATION STATEMENTS ON FORM S-8 To execute and deliver all documents and to carry out with full power and authority every act whatsoever requisite or necessary to be done by or on behalf of the undersigned, including the execution of the Registration Statement on Form S-8 and any documents incident thereto, to register with the Securities and Exchange Commission the additional common stock of Lincare Holdings Inc. which may be issued pursuant to the Lincare Holdings Inc. 1998 Stock Plan, as amended March 10, 1999. GENERAL PROVISIONS All business transacted hereunder for me shall be transacted in my name, and all endorsements and instruments executed by my Attorney-In-Fact for the purpose of carrying out any of the foregoing powers, shall contain my name, followed by that of my Attorney-In-Fact and the designation "Attorney-In-Fact." I hereby ratify and confirm all lawful acts done by my said Attorney-In-Fact pursuant to this Special Power of Attorney, and I direct that this Special Power of Attorney shall continue in effect until terminated by me in writing or by operation of law. If the authority contained herein shall be revoked or terminated by operation of law without notice, I hereby agree for myself, executors, administrators, heirs and assigns, in consideration of my Attorney-In-Fact's willingness to act pursuant to this Special Power of Attorney, to save and hold my Attorney-In-Fact harmless from any loss suffered or any liability incurred by him in so acting after such revocation or termination without notice. ------------------------------ CHESTER B. BLACK 4 SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that I, FRANK T. CARY, a legal resident of the State of Connecticut, desiring to execute a SPECIAL POWER OF ATTORNEY, have made, constituted and appointed, and by these presents do make, constitute and appoint JOHN P. BYRNES and PAUL G. GABOS, or either of them, with full power of substitution, my Attorney-In-Fact for me and in my name, place and stead to do and perform the following acts, deeds, matters and things as he deems advisable in the judgment of my said Attorney-In-Fact as fully and effectually to all intents and purposes as I could do if personally present and acting: REGISTRATION STATEMENTS ON FORM S-8 To execute and deliver all documents and to carry out with full power and authority every act whatsoever requisite or necessary to be done by or on behalf of the undersigned, including the execution of the Registration Statement on Form S-8 and any documents incident thereto, to register with the Securities and Exchange Commission the additional common stock of Lincare Holdings Inc. which may be issued pursuant to the Lincare Holdings Inc. 1998 Stock Plan, as amended March 10, 1999. GENERAL PROVISIONS All business transacted hereunder for me shall be transacted in my name, and all endorsements and instruments executed by my Attorney-In-Fact for the purpose of carrying out any of the foregoing powers, shall contain my name, followed by that of my Attorney-In-Fact and the designation "Attorney-In-Fact." I hereby ratify and confirm all lawful acts done by my said Attorney-In-Fact pursuant to this Special Power of Attorney, and I direct that this Special Power of Attorney shall continue in effect until terminated by me in writing or by operation of law. If the authority contained herein shall be revoked or terminated by operation of law without notice, I hereby agree for myself, executors, administrators, heirs and assigns, in consideration of my Attorney-In-Fact's willingness to act pursuant to this Special Power of Attorney, to save and hold my Attorney-In-Fact harmless from any loss suffered or any liability incurred by him in so acting after such revocation or termination without notice. ------------------------------ FRANK T. CARY 5 SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that I, THOMAS O. PYLE, a legal resident of the State of New York, desiring to execute a SPECIAL POWER OF ATTORNEY, have made, constituted and appointed, and by these presents do make, constitute and appoint JOHN P. BYRNES and PAUL G. GABOS, or either of them with, full power of substitution, my Attorney-In-Fact for me and in my name, place and stead to do and perform the following acts, deeds, matters and things as he deems advisable in the judgment of my said Attorney-In-Fact as fully and effectually to all intents and purposes as I could do if personally present and acting: REGISTRATION STATEMENTS ON FORM S-8 To execute and deliver all documents and to carry out with full power and authority every act whatsoever requisite or necessary to be done by or on behalf of the undersigned, including the execution of the Registration Statement on Form S-8 and any documents incident thereto, to register with the Securities and Exchange Commission the additional common stock of Lincare Holdings Inc. which may be issued pursuant to the Lincare Holdings Inc. 1998 Stock Plan, as amended March 10, 1999. GENERAL PROVISIONS All business transacted hereunder for me shall be transacted in my name, and all endorsements and instruments executed by my Attorney-In-Fact for the purpose of carrying out any of the foregoing powers, shall contain my name, followed by that of my Attorney-In-Fact and the designation "Attorney-In-Fact." I hereby ratify and confirm all lawful acts done by my said Attorney-In-Fact pursuant to this Special Power of Attorney, and I direct that this Special Power of Attorney shall continue in effect until terminated by me in writing or by operation of law. If the authority contained herein shall be revoked or terminated by operation of law without notice, I hereby agree for myself, executors, administrators, heirs and assigns, in consideration of my Attorney-In-Fact's willingness to act pursuant to this Special Power of Attorney, to save and hold my Attorney-In-Fact harmless from any loss suffered or any liability incurred by him in so acting after such revocation or termination without notice. ------------------------------ THOMAS O. PYLE -----END PRIVACY-ENHANCED MESSAGE-----