As filed with the Securities and Exchange Commission on December 31, 1997.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CARETENDERS HEALTH CORP.
(Exact name of registrant specified in its charter)
Delaware 06-1153720
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation of Identification No.)
Organization)
100 Mallard Creek Road, Suite 400
Louisville, Kentucky 40207
(Address of Principal Executive Offices) (Zip Code)
CARETENDERS HEALTH CORP.
Non-Employee Directors Deferred Compensation Plan
(Full title of the Plan)
William B. Yarmuth Copies to:
Chairman, President and Chief Ivan M. Diamond
Executive Officer Greenebaum Doll & McDonald PLLC
CARETENDERS Health Corp. 3300 National City Tower
100 Mallard Creek Road, Suite 400 Louisville, Kentucky 40202
Louisville, Kentucky 40207 (502) 589-4200
(502) 899-5355
(Name, Address and Telephone Number, Including Ara Code, of Agent for
Service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share(1) price(1) fee
------------- ------------ ------------ -------------- --------------
Common Stock,
par value 100,000
$.10 shares $ 7.00 $700,000 $ 212.12
(1) Estimated solely for the purpose of calculating the registration
fee. This estimate has been calculated in accordance with Rule 457
under the Securities Act of 1933 and is based on the average of the high
and low prices per share as reported on the National Association of
Securities Dealers - National Market System on December 23, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Caretenders Health Corp. (_Registrant_)
with the Securities and Exchange Commission (Commission File No. 001-09848)
are incorporated by reference into this Registration Statement:
(a) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1997, as filed November 14, 1997;
(b) The Registrant's Proxy Statement, as filed October 14, 1997;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997, as filed August 14, 1997;
(d) The Registrant's Annual Report on Form 10-K for the year ended
March 31, 1997, as filed July 1, 1997 and as amended;
(e) The description of the Company's Common Stock as contained in the
Registration Statement on Form 8-A, filed by the Company to register the
Common Stock under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), and all amendments or reports filed for the purpose of updating such
description prior to the termination of the offering of Common Stock hereby.
All documents subsequently filed by Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered hereby 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 a part hereof from the date of filing of such documents. Any statement
contained in a document 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 which also is incorporated by reference herein) modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed to constitute a part hereof except as so modified or superseded.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (_GCL_) permits a
Delaware corporation to indemnify any person who was or is, or is threatened
to be made, a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of such corporation) by reason of the fact
that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding, provided that such person acted in good faith and
in a manner such person reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action
or proceeding, such person had no reasonable cause to believe his conduct was
unlawful. A Delaware corporation may indemnify such persons in actions
brought by or in the right of the corporation to procure a judgment in its
favor under the same conditions except that no indemnification is permitted
in respect of any claim, issue or matter as to which such person has been
adjudged to be liable to the corporation unless and to the extent the Court
of Chancery of the State of Delaware or the court in which such action or
suit was brought determines upon application that, in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the Court of Chancery or other such court
deems proper. To the extent such person has been successful on the merits or
otherwise in defense of any action referred to above, or in defense of any
claim, issue or matter therein, the corporation must indemnify him against
expenses (including attorneys' fees) actually and reasonably incurred by him
in connection therewith. Corporations, under certain circumstances, may pay
expenses incurred by an officer or director in advance of the final
disposition of an action for which indemnification may be permitted or
required. The indemnification and advancement of expenses provided for or
granted pursuant to Section 145 are not exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise. Section 145 further provides that a corporation may
maintain insurance against liabilities for which indemnification is not
expressly provided by statute.
Article IX of the Company's Amended and Restated By-Laws provides:
_(a) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of the Corporation) by reason of the fact that he 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, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he 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 reasonable cause to believe that his conduct was
unlawful.
(b) The Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he 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, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be
made in respect to any claim, issue or matter as to which person shall
have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation unless and only to the extent
that the Court of Chancery or 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, such
person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Subsections (a) and (b),
or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under Subsections (a) and (b) (unless ordered
by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has
met the applicable standard of conduct set forth in Subsections (a) and
(b). Such determination shall be made (1) by the Board of Directors by
a majority vote of a quorum consisting of directors who were not parties
to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (3) by
the stockholders.
(e) Expenses incurred in defending a civil or criminal action, suit
or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking
by or on behalf of the director, officer, employee or agent to repay
such amount. He shall not repay the amount if it shall be ultimately
determined that he is entitled to be indemnified by this section.
(f) The indemnification provided by this section shall not be deemed
exclusive of any other rights to which those seeking indemnification may
be entitled under any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(g) The Corporation is authorized, according to the discretion of the
Board of Directors, to purchase and maintain insurance on behalf of any
person who 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,
partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity,
or arising out of his status as such, whether or not the Corporation
must indemnify him against such liability under the provisions of this
section.
(h) For purposes of this section, references to _the Corporation_
shall include, in addition to the Corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position
under the provisions of this section with respect to the resulting
corporation as he would have with respect to such constituent
corporation if its separate existence had continued._
The Company maintains liability insurance coverage for its officers and
directors which entitles the Company to be reimbursed for certain indemnity
payments it is required or permitted to make to its directors and officers
with respect to actions arising out of the performance of such officer's or
director's duty in his or her capacity as such.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8.Exhibits.
The following exhibits are filed as part of this Registration Statement:
4.1 Certificate of Incorporation, as amended (Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K for the year ended March 31, 1997, is
incorporated herein by reference).
4.2 Amended and Restated By-Laws (Exhibit 3.2 to the Registrant's
Annual Report on Form 10-K for the year ended March 31, 1997, is incorporated
herein by reference).
4.3 Amended and Restated Revolving Credit Note Between the Registrant
and Heller Financial dated October 13, 1995.
5 Opinion of Greenebaum Doll & McDonald PLLC as to the legality of the
securities being registered.
23.1 Consent of Greenebaum Doll & McDonald PLLC (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
24Powers of Attorney (included on signature page of the Registration
Statement).
Item 9.Undertakings.
(a) The undersigned Registrant hereby undertakes:
(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;
(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) of this Item 9
do not apply if the Registration Statement is on Form S-3 or Form S-8 and the
information required to be included in the post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the 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 hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
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 to 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.
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, 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
Registrant of expenses incurred or paid by a director, officer or controlling
person of 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, 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.
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 Louisville, State of Kentucky, on December 23,
1997.
CARETENDERS HEALTH CORP.
By: William B. Yarmuth
Chairman, President and Chief Executive Officer
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.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints William B. Yarmuth and C. Steven Guenthner and
each of them such individual's true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for such individual and
in his or her name, place and stead, in any and all capacities, to sign all
amendments (including post-effective amendments) to this Registration
Statement and any registration statement related to the offering contemplated
by this Registration Statement that is to be effective upon filing pursuant
to Rule 462(b) under the Securities Act of 1933, and to file the same, with
all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission and any State or other regulatory
authority, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises as fully to all
intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any
of them, or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Signature Title Date
/s/ William B. Yarmuth Chairman of the Board, President December 23, 1997
William B. Yarmuth and Chief Executive Officer
/s/ C. Steven Guenthner Senior Vice President and Chief December 23, 1997
C. Steven Guenthner Financial Officer (Chief Financial
and Accounting Officer)
/s/ Steven B. Bing Director December 29, 1997
Steven B. Bing
/s/ Patrick B. McGinnis Director December 29, 1997
Patrick B. McGinnis
/s/ Donald G. McClinton Director December 29, 1997
Donald G. McClinton
/s/ Tyree G. Wilburn Director December 29, 1997
Tyree G. Wilburn
/s/ Jonathan Goldberg Director December 29, 1997
Jonathan Goldberg
/s/ Wayne T. Smith Director December 29, 1997
Wayne T. Smith