1
As filed with the Securities and Exchange Commission on August 15, 2001
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)
34-1687107
Delaware (I.R.S. Employer
(State of incorporation) Identification Number)
MANOR CARE, INC.
333 North Summit Street
Toledo, Ohio 43604-2617
(419) 252-5500
(Address of principal executive offices)
THE EQUITY INCENTIVE PLAN
OF MANOR CARE, INC.
(FULL TITLE OF THE PLAN)
------------------
R. Jeffrey Bixler Copies to: Michael D. Levin
Vice President, General Counsel Latham & Watkins
and Secretary Sears Tower, Suite 5800
Manor Care, Inc. Chicago, Illinois 60606
333 North Summit Street (312) 876-7700
Toledo, Ohio 43604-2617 Counsel to Registrant
(419) 252-5500
(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 share (2) aggregate offering price registration fee
------------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.01 per share 4,000,000 Shares $ 30.55 $ 122,200,000 $30,550
====================================================================================================================================
(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 August 9, 2001, which was
$ 30.55 per share .
================================================================================
2
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 Manor Care,
Inc., a Delaware corporation (the "Company"), with the Securities and Exchange
Commission (the "Commission") and are incorporated in this Registration
Statement by reference:
a. The Company's Annual Report on Form 10-K/A for the fiscal
year ended December 31, 2000;
b. The Company's Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 2001 and June 30, 2001;
c. 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, 2000; and
d. 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 Equity
Incentive Plan of Manor Care, Inc. (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.
3
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 full 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 Corporation 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
Corporation or, while a director or officer of the
Corporation, is or was serving at the request of the
Corporation 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
4
applicable law. Expenses incurred by a person who is
or was a director or officer of the Corporation in
appearing at, participating in or defending any such
action, suit or proceeding shall be paid by the
Corporation 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 Corporation as authorized by
this Section 14. If a claim under this Section 14 is
not paid in full by the Corporation within ninety
days after a written claim has been received by the
Corporation, the claimant may at any time thereafter
bring suit against the Corporation 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 Corporation) 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
Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall
be on the Corporation. Neither the failure of the
Corporation (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 Corporation (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.
5
ITEM 8. Exhibits
Exhibit Number Description
-------------- -----------
4* The Equity Incentive Plan of Manor Care, Inc.*
5 Opinion of R. Jeffrey Bixler, General Counsel of the Company
23.1 Consent of Independent Auditors
23.2 Consent of R. Jeffrey Bixler (included in the opinion filed as Exhibit 5)
* Filed as Appendix C to Manor Care, Inc.'s Proxy Statement
dated April 6, 2001 in connection with its Annual Meeting held
on May 8, 2001, and incorporated herein by reference.
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 Commission 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.
6
(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 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.
7
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 August 15, 2001.
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/ Stewart Bainum, Jr. Chairman of the Board, Director )
------------------------------------ )
Stewart Bainum, Jr. )
)
)
/s/ William H. Longfield Director ) August 15, 2001
------------------------------------ )
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/ John T. Schwieters Director )
------------------------------------ )
John T. Schwieters )
)
)
/s/ Paul S. Ormond President and Chief Executive Officer )
------------------------------------ (Principal Executive Officer); Director )
Paul A. Ormond )
)
)
8
/s/ Robert G. Siefers Director )
------------------------------------ )
Robert G. Siefers )
)
)
/s/ M. Keith Weikel Senior Executive Vice President and Chief )
------------------------------------ Operating Officer; Director )
M. Keith Weikel )
)
/s/ Gail R. Wilensky Director )
------------------------------------ )
Gail R. Wilensky )
)
)
/s/ Thomas L. Young Director )
------------------------------------ )
Thomas L. Young )
9
EXHIBIT INDEX
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
------ ----------- ----
**4 The Equity Incentive Plan of Manor Care, Inc.
*5 Opinion of R. Jeffrey Bixler E-_
*23.1 Consent of Independent Auditors E-_
*23.2 Consent of R. Jeffrey Bixler (included in opinion filed as Exhibit 5) E-_
----------------------
* Filed herewith
** Filed as Appendix C to Manor Care, Inc.'s Proxy Statement dated April 6,
2001 in connection with its Annual Meeting held on May 8, 2001, and
incorporated herein by reference.