As filed with the Securities and Exchange Commission on December 30, 2002
Registration No. 333-___
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MANOR CARE, INC.
(Exact name of registrant as specified in its charter)
Delaware 34-1687107
(State of incorporation) (I.R.S. Employer
Identification Number)
MANOR CARE, INC.
333 North Summit Street
Toledo, Ohio 43604-2617
(419) 252-5500
(Address of principal executive offices)
HCR MANOR CARE STOCK PURCHASE AND RETIREMENT SAVINGS 401(k) PLAN
(FULL TITLE OF THE PLAN)
R. Jeffrey Bixler Copies to: Michael Levin
Vice President, General Counsel and Secretary Latham & Watkins
Manor Care, Inc. Sears Tower, Suite 5800
333 North Summit Street Chicago, Illinois 60606
Toledo, Ohio 43604-2617 (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 (1) to be registered offering price per aggregate offering registration fee
share (2) price
Common Stock, par value $.01 3,000,000 Shares $18.75 $56,250,000 $5,175.00
per share
(1) In addition, pursuant to Rule 416(c) of the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(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 December 26, 2002, which
was $18.75 per share.
The prospectus that is part of this registration statement also relates to
Registration Statement No. 333-81833.
EXPLANATORY NOTE
This Registration Statement provides for an increase in the
number of shares of common stock ($0.01 par value) (the "Common Stock") of Manor
Care, Inc. (the "Company") which are registered for issuance pursuant to the HCR
Manor Care Stock Purchase and Retirement Savings 401(k) Plan ("the Plan"). On
December 20, 1994 the Company filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-8 (File No. 33-87640) relating to
400,000 shares of Common Stock to be offered and sold under the HCR Stock
Purchase and Retirement Savings Plan (the "HCR Plan"). Pursuant to Rule 416, the
number of registered shares was increased to 600,000 when the Common Stock
underwent a 3-for-2 split in the form of a stock dividend effective June 5,
1996. On December 23, 1999 the Company filed with the SEC an additional
registration statement on Form S-8 (File No. 333-93573) relating to 200,000
shares of Common Stock to be offered and sold under the HCR Plan. On June 29,
1999 the Company filed with the SEC a registration statement of Form S-8 (File
No. 333-81833) relating to 1,300,000 shares to be offered and sold under the
Manor Care, Inc. Retirement Savings and Investment Plan (the "Manor Care Plan").
On January 1, 2003 the Company will merge the Manor Care Plan into the HCR Plan
to become the Plan. This Registration Statement increases the number of
registered shares of Common Stock under the Plan from 2,100,000 to 5,100,000.
The contents of all prior registration statements are incorporated into this
Registration Statement by reference. The Items below contain information
required in this registration that was not included in the prior registration
statements.
PART I
Item 1. Plan Information
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information
Not required to be filed with this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference
The documents listed below have been filed by the Company with
the SEC and are incorporated in this Registration Statement by reference:
a. The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 2001;
b. The Company's Definitive Proxy Statement, filed April 4,
2002 for the Annual Meeting of Stockholders held on May 7, 2002;
c. The Company's Quarterly Report on Form 10-Q for the fiscal
quarters ended March 31, June 30, and September 30, 2002 which were filed on May
13, August 12 and November 12, 2002, respectively;
d. The Company's Current Report on Form 8-K filed August 13,
2002;
e. The HCR Stock Purchase and Retirement Savings Plan's Annual
Report on Form 11-K for the fiscal year ended December 31, 2001;
f. The Manor Care, Inc. Retirement Savings and Investment
Plan's Annual Report on Form 11-K for the fiscal year ended December 31, 2001;
g. All other reports filed by the Company pursuant to Section
13(a) and 15(d) of the Securities Exchange Act of 1934 since the end of the
Company's fiscal year ended December 31, 2001; and
h. The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A filed on September 12, 1991
pursuant to Section 12 of the Securities Exchange Act of 1934, including any
amendment or reports filed for the purpose of updating such description.
All documents subsequently filed by the Company or the Plan
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934 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
Registration Statement and to be part hereof from the date of filing such
documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement 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
Registration Statement.
Item 4. Description of Securities
Not required to be filed with this Registration Statement.
Item 5. Interests of Named Experts and Counsel
The validity of the issuance of the shares of common stock
registered hereby has been passed upon by R. Jeffrey Bixler who serves as Vice
President, General Counsel and Secretary of the Company.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides, in summary, that Delaware corporations such as
the Company may, under certain circumstances, indemnify their directors and
officers, as well as other employees and individuals, against all expenses and
liabilities (including attorneys' fees) incurred by them as a result of suits
brought against them in their capacity as a director, officer, employee or agent
of the corporation, 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, if they had no reasonable
cause to believe their conduct was unlawful. A corporation may also indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that the person is or was
a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or other enterprise against expenses (including attorneys' fees)
incurred by the person in connection with the defense or settlement of such
action if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation except
that no indemnification may be made against expenses in respect of any claim,
issue or matter as to which they shall have been adjudged to be liable to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine upon application that despite the adjudication
of liability but in view of all the circumstances of the case, they are fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper. Any such indemnification may be made by the corporation only as
authorized in each specific case upon a determination by the stockholders or
disinterested directors that indemnification is proper because the indemnitee
has met the applicable standard of conduct. Article III, Section 14 of the
Company's Amended and Restated By-Laws entitles officers and directors of the
Company to indemnification to the fullest extent permitted by Section 145 of
DGCL, as the same may be supplemented or amended from time to time.
Article III, Section 14 of the Company's Amended and Restated By-Laws
provides:
Section 14. INDEMNIFICATION. The Company shall
indemnify every person who was or is a party or is or
was threatened to be made a party to any action,
suit, or proceeding, whether civil, criminal,
administrative or investigative, by reason of the
fact that he is or was a director or officer of the
Company or, while a director or officer of the
Company, is or was serving at the request of the
Company as a director, officer, employee, agent or
trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or other
enterprise, against expenses (including counsel
fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding, to
the full extent permitted by applicable law. Expenses
incurred by a person who is or was a director or
officer of the Company in appearing at, participating
in or defending any such action, suit or proceeding
shall be paid by the Company at reasonable intervals
in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by
or on behalf of the director or officer to repay such
amount if it shall ultimately be determined that he
is not entitled to be indemnified by the Company as
authorized by this Section 14. If a claim under this
Section 14 is not paid in full by the Company within
ninety days after a written claim has been received
by the Company, the claimant may at any time
thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be paid also the
expense of prosecuting such claim. It shall be a
defense to any such action (other than an action
brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final
disposition where the required undertaking, if any is
required, has been tendered to the Company) that the
claimant has not met the standards of conduct which
make it permissible under the Delaware General
Corporation Law or other applicable law for the
Company to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall
be on the Company. Neither the failure of the Company
(including its Board of Directors (or any committee
thereof), independent legal counsel, or its
stockholders) to have made a determination prior to
the commencement of such action that indemnification
of the claimant is proper in the circumstances
because he has met the applicable standard of conduct
set forth in the Delaware General Corporation Law or
other applicable law, nor an actual determination by
the Company (including its Board of Directors (or a
committee thereof), independent legal counsel, or its
stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant
has not met the applicable standard of conduct.
The Company has entered into separate indemnification
agreements with directors and officers of the Company, pursuant to which the
Company will indemnify such directors and officers to the fullest extent
permitted by Delaware law, as the same may be amended from time to time.
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 Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit Number Description
-------------- -----------
4 HCR Manor Care Stock Purchase and Retirement Savings 401(k) Plan
5 Opinion of R. Jeffrey Bixler, General Counsel of the Company
23.1 Consent of Ernst & Young LLP
23.2 Consent of R. Jeffrey Bixler (included in the opinion filed as Exhibit 5)
Item 9. Undertakings
a. The undersigned registrant and the Plan hereby undertake:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of 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 the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply to information contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
b. The undersigned registrant and the Plan hereby undertake that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 and each filing of the Plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
c. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the 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 Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Toledo, State of Ohio, on December 30, 2002.
MANOR CARE, INC.
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/ Virgis W. Colbert Director )
---------------------
Virgis W. Colbert )
)
)
/s/ Joseph H. Lemieux Director )
---------------------
Joseph H. Lemieux ) December 30, 2002
)
)
/s/ William H. Longfield Director )
---------------------
William H. Longfield )
)
)
/s/ Frederic V. Malek Director )
---------------------
Frederic V. Malek )
)
)
/s/ Geoffrey G. Meyers Executive Vice President and Chief )
--------------------- Financial Officer (Principal Financial )
Geoffrey G. Meyers Officer); )
)
/s/ Spencer C. Moler Vice President and Controller (Principal )
--------------------- Accounting Officer) )
Spencer C. Moler )
)
/s/ Paul A. Ormond Chairman of the Board; President and Chief )
--------------------- Executive Officer (Principal Executive )
Paul A. Ormond Officer); Director )
)
/s/ John T. Schwieters Director )
---------------------
John T. Schwieters )
)
)
/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/ Gail R. Wilensky Director )
---------------------
Gail R. Wilensky )
)
/s/ Thomas L. Young Director )
---------------------
Thomas L. Young )
Pursuant to the requirements of the Securities Act of 1933,
the plan administrator has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Toledo, State of Ohio, on December 30, 2002.
HCR MANOR CARE STOCK PURCHASE AND
RETIREMENT SAVINGS 401(k) PLAN
By: HEARTLAND EMPLOYMENT
SERVICES, INC.
EMPLOYEE BENEFITS COMMITTEE
PLAN ADMINISTRATOR
By: /s/ Wade B. O'Brian
--------------------------
Name: Wade B. O'Brian
--------------------------
Title: Chairman
--------------------------
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
*4 HCR Manor Care Stock Purchase and Retirement Savings 401(k) Plan
*5 Opinion of R. Jeffrey Bixler
*23.1 Consent of Ernst & Young LLP
*23.2 Consent of R. Jeffrey Bixler (included in opinion file as Exhibit 5)
* Filed herewith