AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 29, 1997
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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TOTAL RENAL CARE HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 51-0354549
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
21250 Hawthorne Boulevard, Suite 800
Torrance, California 90503-5517
(310) 792-2600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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1997 Equity Compensation Plan
(Full title of the plan)
JOHN E. KING
Chief Financial Officer
Total Renal Care Holdings, Inc.
21250 Hawthorne Boulevard, Suite 800
Torrance, California 90503-5517
(310) 792-2600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
JAMES W. LOSS, Esq.
Riordan & McKinzie
695 Town Center Drive, Suite 1500
Costa Mesa, California 92626
(714) 433-2900
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE/(1)/ OFFERING PRICE FEE
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Common Stock 2,500,000 $43.75 $109,375,000 $33,144
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/(1)/ Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457, based on the average of the high and low sales
prices of the Company's Common Stock on August 26, 1997, respectively, as
reported on the New York Stock Exchange.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Total Renal Care Holdings, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(1) Annual Report of the Company on Form 10-K for the fiscal year ended
December 31, 1996.
(2) All other reports filed by the Company pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 1996, the end of the Company's most recently completed
fiscal year for which an Annual Report on Form 10-K was filed.
(3) The description of the common stock of the Company (the "Common Stock")
contained in the Company's Registration Statement on Form 8-A, filed October 21,
1995.
(4) All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and 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 a part hereof from the date of filing of such documents.
Any statement contained herein or in any 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 which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such 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 applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation. Section 145 of the Delaware General
Corporation Law provides that a Delaware corporation may indemnify any person
against expenses, judgments, fines and settlements actually and reasonably
incurred by any such person in connection with a threatened, pending or
completed action, suit or proceeding in which such person is involved by reason
of the fact that he or she is or was a director, officer, employee or agent of
such corporation, provided that (i) such person acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation and (ii) with respect to any criminal action or proceeding, such
person had no reasonable cause to believe his or her conduct was unlawful. If
the action or suit is by or in the name of the corporation, the corporation may
indemnify any such person against expense actually and reasonably incurred by
him or her in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification may be made in respect to any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Delaware Court of Chancery or the court in which the
action or suit is brought determines upon application that, despite the
adjudication of liability but in view of all of the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expense as
the court deems proper.
Article XI, Section 1 of the Company's By-Laws provides for indemnification
of persons to the fullest extent permitted by the Delaware General Corporation
Law.
II-1
In accordance with the Delaware General Corporation Law, the Company's
Certificate of Incorporation, as amended, limits the personal liability of its
directors for violations of their fiduciary duty. The Certificate of
Incorporation eliminates each director's liability to the Company or its
stockholders for monetary damages except (i) for any breach of the director's
duty of loyalty to the Company 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 Delaware General Corporation Law
providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions, or (iv) for any transaction from which
a director derived an improper benefit. The effect of this provision is to
eliminate the personal liability of directors for monetary damages for actions
involving a breach of their fiduciary duty of care, including any such actions
involving gross negligence. This provision will not, however, limit in any way
the liability of directors for violations of the federal securities laws.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 1997 Equity Compensation Plan of the Company.
5.1 Opinion of Riordan & McKinzie, a Professional Corporation.
23.1 Consent of Riordan & McKinzie, a Professional Corporation (included in
Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (included on page II-4).
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ITEM 9. UNDERTAKINGS.
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, as amended (the "Securities Act");
(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 (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, 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.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) 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.
Insofar as indemnification for liabilities under the Securities Act 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 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.
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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 Torrance, State of California, on August 29, 1997.
TOTAL RENAL CARE HOLDINGS, INC.
By: /s/ John E. King
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John E. King
Chief Financial Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John E. King, Victor M.G. Chaltiel and Barry C.
Cosgrove, and each of them, his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, 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 might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Title Date
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/s/ Victor M.G. Chaltiel Chairman of the Board, Chief August 29, 1997
- ------------------------ Executive Officer, and Director
Victor M.G. Chaltiel
/s/ John E. King Vice President, Finance and August 29, 1997
- ------------------------ Chief Financial Officer
John E. King
/s/ Maris Andersons Director August 29, 1997
- ------------------------
Maris Andersons
/s/ Peter T. Grauer Director August 29, 1997
- ------------------------
Peter T. Grauer
/s/ Regina E. Herzlinger Director August 29, 1997
- ------------------------
Regina E. Herzlinger
/s/ Shaul G. Massry Director August 29, 1997
- ------------------------
Shaul G. Massry
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INDEX TO EXHIBITS
Sequentially
Numbered
Exhibit Description Page Number
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4.1 1997 Equity Compensation Plan of the Company.
5.1 Opinion of Riordan & McKinzie, a Professional Corporation.
23.1 Consent of Riordan & McKinzie, a Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (included on page II-4).
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