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As filed with the Securities and Exchange Commission on July 9, 1997
Registration Statement 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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SUMMIT CARE CORPORATION
(Exact Name of Issuer as Specified in Its Charter)
CALIFORNIA 95-3656297
(State of Incorporation) (I.R.S. Employer Identification Number)
2600 WEST MAGNOLIA BLVD.
BURBANK, CALIFORNIA 91505
(Address of Principal Executive Offices) (Zip Code)
SUMMIT CARE CORPORATION
STOCK OPTION PLAN
(Full Title of the Plan)
DERWIN L. WILLIAMS
Senior Vice President - Finance
Summit Care Corporation
22613 Old Canal Road
Yorba Linda, California 92887
(Name and Address of Agent For Service)
(714) 279-1450
(Telephone Number, Including Area Code, of Agent for Service)
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With a copy to:
PETER F. ZIEGLER, ESQ.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
(213) 229-7000
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Securities Proposed Maximum Offering Aggregate Offering Amount of
to be Registered Amount to be Registered Price Per Share (1) Price(1) Registration Fee(1)
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Common Stock, no
par value 1,400,000 $13 9/16 $18,987,500 $5,753.79
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(1) Estimated solely for purpose of calculating the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
prices of the Common Stock of Summit Care Corporation as reported on
the NASDAQ National Market on July 7, 1997.
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EXPLANATORY NOTE
Summit Care Corporation, a California corporation (the "Company")
adopted the Summit Care Corporation Stock Option Plan (as amended, the "Plan")
in 1992. The shares of the common stock of the Company, no par value per share
(the "Common Stock"), reserved for issuance upon the exercise of options awarded
pursuant to the Plan have not been registered under the Securities Act of 1933,
as amended (the "Act"). However, the Company has awarded options under the Plan,
and certain of these options have been exercised pursuant to a valid exemption
from the registration requirements of the Act, resulting in the sale by the
Company of restricted shares of Common Stock.
This Registration Statement is intended to register the following for
issuance by the Company:
1. 1,020,000 shares of the Company which may be issued by the Company
pursuant to the exercise of outstanding options previously awarded under the
Plan; and
2. 344,000 shares of Common Stock which may be issued by the Company
pursuant to the exercise of options that may be subsequently awarded under the
Plan.
Also, this Registration Statement, and the reoffer prospectus included
herein, is intended to register the following for reoffer and/or resale:
1. 36,000 restricted shares of Common Stock which have been issued by
the Company upon the exercise of options granted under the Plan pursuant to a
valid exemption from the registration requirements of the Act; and
2. Shares of Common Stock that may be acquired in the future under the
Plan by persons who may be considered affiliates of the Company as defined by
Rule 405 under the Act.
The materials constituting the reoffer prospectus have been prepared
pursuant to Part I of Form S-3, in accordance with General Instruction C to Form
S-8.
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REOFFER PROSPECTUS
SUMMIT CARE CORPORATION
COMMON STOCK
(NO PAR VALUE)
UP TO 1,400,000 SHARES
This Prospectus relates to up to 1,400,000 shares of Common
Stock, no par value ("Common Stock"), of Summit Care Corporation (the "Company")
which have previously been issued or may in the future be issued pursuant to the
exercise of options awarded to date under the Company's Stock Option Plan (as
amended, the "Plan") to, and which may be offered for resale from time to time
by, certain employees of the Company and its subsidiaries named in Annex 1
hereto (the "Selling Shareholders").
The Company will not receive any of the proceeds from the sale
of the Common Stock offered hereby (hereinafter, the "Securities"). The Company
will pay all of the expenses associated with the registration of the Securities
and this Prospectus. The Selling Shareholders will pay the other costs, if any,
associated with any sale of the Securities.
The Common Stock is quoted on the NASDAQ National Market under
the symbol "SUMC." On July 8, 1997, the last reported sale price per share of
the Common Stock, as quoted on the NASDAQ National Market, was $13 3/4.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The date of this Prospectus is July 9, 1997.
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AVAILABLE INFORMATION
The Company has filed a Registration Statement on Form S-8 (the
"Registration Statement") with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), covering the securities (i) covered by this Prospectus, (ii) issuable
upon the exercise of options previously awarded under the Plan, and (iii)
issuable upon the exercise of options which may be subsequently awarded under
the Plan. This Prospectus omits certain information and exhibits included in the
Registration Statement, copies of which may be obtained upon payment of a fee
prescribed by the Commission or may be examined free of charge at the principal
office of the Commission in Washington, D.C.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information filed with
the Commission by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the regional offices of the Commission located at
500 West Madison Street, Room 1400, Chicago, Illinois 60606 and at the Jacob K.
Javits Federal Building, 75 Park Place, New York, New York 10278. Copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
INCORPORATION BY REFERENCE
The following documents of the Registrant heretofore filed with the
Securities and Exchange Commission are hereby incorporated in this Registration
Statement by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
June 30, 1996, as filed on September 6, 1996 with the Security
and Exchange Commission pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended;
(2) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, No. 0-19411, as
filed with the Securities and Exchange Commission on July 17,
1991, and any amendment or report filed with the Commission
for the purpose of updating such description of Common Stock;
(3) The Company's Quarterly Report on Form 10-Q for the period
ended September 30, 1996, as filed with the Securities and
Exchange Commission on November 8, 1996;
(4) The Company's Quarterly Report on Form 10-Q for the period
ended December 31, 1996, as filed with the Securities and
Exchange Commission on February 13, 1997; and
(5) The Company's Quarterly Report on Form 10-Q for the period
ended March 31, 1997, as filed with the Securities and
Exchange Commission on May 14, 1997.
All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a) and 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder have been sold
or which deregisters all such securities then remaining unsold shall be deemed
to be
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incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such reports and documents.
RISK FACTORS
Governmental Regulation
The Company's business is regulated by the federal government and by
various state and local authorities in California, Texas and Arizona. Each of
the Company's centers and its pharmacy is licensed or certified by the state in
which it is located and its state licenses and certifications must be renewed
annually. The Company's centers and its pharmacies are also subject to federal
licensure and/or certification laws. The Company's skilled nursing care and
assisted living centers are subject to periodic inspection by governmental and
other authorities to assure continued compliance with various standards
established for continued licensing under state law and certification under
Medicare and Medicaid programs. The failure to obtain or renew any required
regulatory approvals or licenses could materially and adversely affect the
Company's ability to receive Medicare and Medicaid payments, could prevent the
expansion of the Company or could prevent it from offering its existing
services, any of which could adversely affect the Company's business or results
of operations. Regulatory and licensing requirements are subject to change, and
there can be no assurance that the Company will be able to maintain all
necessary licenses or that it will not incur substantial costs in doing so.
The Company is subject to federal and state laws prohibiting certain
direct and indirect payments between health care providers that are intended,
among other things, to induce or encourage the referral of patients to, or other
recommendation of, a particular provider of products or services. In addition,
certain federal and state laws have recently been enacted to prohibit physician
self-referrals for certain "designated health services" rendered to patients by
a physician who has an ownership interest or other financial relationship with
the provider. The Company contracts with physicians for medical directors'
services and such physicians refer patients to the Company's centers from time
to time. Accordingly, these prohibitions could, among other things, require the
Company to modify its contractual arrangements with its medical directors or
prohibit these physicians from referring patients to the Company.
Dependence on Reimbursement by Third-Party Payors
A substantial portion of the Company's revenues are derived from
government-sponsored health care programs, such as Medicare and Medicaid, and
from managed care organizations. Typically, services provided to Medicare,
managed care and private pay patients are reimbursed at a higher rate than
services provided to Medicaid patients. Accordingly, changes in the mix of
revenue sources of the Company among Medicaid, Medicare, managed care
organizations and private payors can significantly affect the revenues and
profitability of the Company. There can be no assurance that the Company will
continue to attract and retain sufficient Medicare, managed care and private pay
patients to maintain its quality mix.
Governmental and certain third-party payors employ cost-containment
measures designed to limit payments made to health care providers such as the
Company. Those measures include the adoption of initial and continuing recipient
eligibility criteria that may limit payment for services, the adoption of
coverage criteria that limit the services that will be reimbursed and the
establishment of payment ceilings that set the maximum reimbursement that a
provider may receive for services. Furthermore, government reimbursement
programs are subject to statutory and regulatory changes, administrative
rulings, government funding restrictions and, in the case of the Medicare
program, retrospective adjustments, all of which may materially decrease the
rate of reimbursement to the Company for its services. There can be no assurance
that payments under governmental and certain third-party payor programs will
remain at levels comparable to present
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levels or will, in the future, be sufficient to cover the costs allocable to
patients eligible for reimbursement pursuant to such programs. In addition, cost
increases which occur without corresponding increases in reimbursement would
adversely affect the Company's business and results of operations. The Company's
operations could also be materially and adversely affected by regulation
developments by governmental payors such as mandatory increases in the scope and
quality of care for skilled nursing care patients or revisions in program
certification standards, unless such developments are accompanied by
corresponding rate increases.
In attempts to limit federal and state budget deficits, there have
been, and the Company expects that there may continue to be, a number of
proposals to limit Medicare and Medicaid reimbursement for health care services.
For example, through its 1994 budget the federal government has placed a freeze
on increasing "routine service costs" at nursing facilities for cost reporting
periods beginning in the Company's 1995 fiscal year and has placed limits on any
exceptions that may be granted to the reimbursement rate freeze The federal
government subsequently lifted the reimbursement rate freeze for cost reporting
periods beginning in the Company's 1997 fiscal year. The Company cannot predict
whether other such proposals will be adopted in the future or, if adopted and
implemented, what effect, if any, such proposals will have on the Company.
The Company's centers that participate in applicable state Medicaid
programs are subject to risk of changes in Medicaid reimbursement and payment
delays resulting from budgetary shortfalls of state Medicaid programs. The
Company received approximately 10% of its revenues during the six months ended
December 31, 1996 from Medi-Cal, the California Medicaid program ("Medi-Cal").
The Company has experienced, and may in the future experience, delays in payment
and in rate increases by Medi-Cal. The Company may also experience delays in
payment and in rate increases by other governmental and third-party payors.
Given the percentage of the Company's revenues derived from Medi-Cal and other
governmental payors, there can be no assurance that rate freezes or future
delays in payments from Medi-Cal or other governmental and third-party payors
will not have a material adverse effect on the Company.
Effect of Health Care Reform Proposals
In recent years, an increasing number of legislative proposals have
been introduced in Congress and various state legislatures that would affect
major reforms of the health care system. Among the proposals under consideration
are insurance market reforms to increase the availability of group health
insurance to small businesses, requirements that all businesses offer health
insurance coverage to their employees, the provision of federal tax credits to
individuals for the purchase of health insurance and the creation of a single
government health insurance plan that would cover all citizens. In addition, the
Clinton administration has promulgated proposals including cutbacks to certain
Medicare and Medicaid programs and has proposed steps to permit greater
flexibility in the administration of Medicaid. In California, the Department of
Health Services has established plans to enroll many Medi-Cal recipients in
managed care plans. These plans have the option of covering long-term care in
addition to other services, which could materially and adversely affect the
Company's revenue. Changes in the reimbursement levels under Medicare or
Medicaid and changes in applicable government regulations could materially and
adversely affect the Company's results of operations. It is uncertain at this
time what health care reform legislation will ultimately be enacted and
implemented or whether other changes in the administration or interpretation of
the governmental health care programs will occur. There can be no assurance that
future health care legislation or other changes in the administration or
interpretation of governmental health care programs, if enacted, will not have a
material adverse effect on the results of operations of the Company.
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Dependence on Key Management and Qualified Nursing and Clinical Personnel
The Company's continued success will depend in part upon the management
services of William C. Scott, Chairman of the Board and Chief Executive Officer
of the Company. Although the Board of Directors has authorized an employment
agreement for Mr. Scott, the Company and Mr. Scott have not entered into any
employment agreement or any other agreement that restricts Mr. Scott's ability
to compete with the Company following the termination of his employment. The
loss of Mr. Scott's services or his employment by a competitor of the Company
following the termination of his services could have a material adverse effect
on the Company.
Historically, the health care industry, generally, and to a lesser
extent the Company, have operated with a shortage of licensed nursing personnel,
and the Company has faced difficulties recruiting qualified clinical personnel
for certain facilities in Texas. Any shortage in nursing personnel could require
the Company to pay higher salaries and make greater use of higher cost temporary
nursing personnel. There can be no assurance that the Company will continue to
be able to attract and retain sufficient qualified personnel. A lack of such
personnel could limit the Company's ability to expand and might result in
reduced patient days or require the Company to admit patients requiring lower
levels of care, any or all of which could materially and adversely affect the
Company's results of operations.
Limited Geographic Diversity
All but one of the Company's centers are located in California and
Texas. As a part of its strategy, the Company intends to continue to expand
operations in those states. There can be no assurance, however, that the
regulatory environment or the reimbursement rates paid under Medi-Cal or the
Medicaid program in Texas will not change. Such changes could materially and
adversely affect the Company. In addition, the Company's concentration of
operations increases the risk that any adverse economic, regulatory or other
developments that may occur in these two states may materially and adversely
impact the Company.
Competition
The Company operates in a highly competitive industry. The Company's
skilled nursing care and assisted living centers are located in communities that
also are served by similar centers operated by others. Some competing centers
provide services not offered by the Company and some are operated by entities
having greater financial and other resources than the Company. In addition, some
are operated by non-profit organizations or government agencies supported by
endowments, charitable contributions, tax revenues and other sources not
available to the Company. Furthermore, cost containment efforts, which encourage
more efficient utilization of acute care hospital services, have resulted in
decreased hospital occupancy in recent years. As a result, a significant number
of acute care hospitals have converted portions of their facilities to other
purposes, including specialty and sub-acute units. In California, Texas and
Arizona a certificate of need is no longer required in order to build or expand
a nursing center, which is another factor increasing competition. The Company's
pharmacies also operate in a highly competitive environment and competes with
regional and local pharmacies, medical supply companies and pharmacies operated
by large long-term care chains. The Company may also encounter competition in
acquiring or developing new centers.
Liability and Insurance
The Company's services subject it to liability risk. Malpractice claims
may be asserted against the Company if its services are alleged to have resulted
in patient injury or other adverse effects, the risk of which is greater for
higher acuity patients, such as those treated by the Company's specialty and
sub-acute services, than for traditional long-term care patients. The
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Company has from time to time been subject to such malpractice claims and other
litigation in the ordinary course of its business. While the Company believes
that the ultimate resolution of all pending legal proceedings will not have a
material adverse effect on the Company's business or financial condition, there
can be no assurance that future claims will not have a material adverse effect
on the Company's business or financial condition. The Company's current general
and professional liability policy has limits of $9,000,000 per occurrence and
$9,500,000 in the aggregate. Although the Company has not been subject to any
judgments or settlements in excess of its coverage limits, there can be no
assurance that claims for damages in excess of its coverage limits will not
arise in the future.
Volatility of Stock Price
The market for the Common Stock and the stock of other health care
companies has been volatile. The trading price of the Common Stock could be
subject to wide fluctuations resulting from quarter-to-quarter variations in
operating results, news announcements, legislative developments, trading volume,
general market trends and other factors.
SELLING SHAREHOLDERS
The table attached as Annex I hereto sets forth, as of the date of this
Prospectus or a subsequent date if amended or supplemented, (a) the name of each
Selling Shareholder and his or her relationship to the Company; (b) the number
of shares of Common Stock each Selling Shareholder beneficially owns (assuming
that all options to acquire shares are exercisable within 60 days, although
options actually vest over five years); and (c) the number of Securities offered
pursuant to this Prospectus by each Selling Shareholder. The information
contained in Annex I may be amended or supplemented from time to time.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Securities offered hereby.
PLAN OF DISTRIBUTION
Sales of the Securities offered hereby may be made on the NASDAQ
National Market or the over-the-counter market or otherwise at prices and on
terms then prevailing or at prices related to the then current market price, or
in negotiated transactions. The Securities may be sold in (a) a block trade in
which the broker or dealer so engaged will attempt to sell the Securities as
agent but may position and resell a portion of the block as principal to
facilitate the transaction, (b) transactions in which a broker or dealer acts as
principal and resells the Securities for its account pursuant to this
Prospectus, (c) an exchange distribution in accordance with the rules of such
exchange, and (d) ordinary brokerage transactions and transactions in which the
broker solicits purchases. In effecting sales, brokers or dealers engaged by the
Selling Shareholders may arrange for other brokers or dealers to participate.
Brokers or dealers will receive commissions or discounts from Selling
Shareholders in amounts to be negotiated immediately prior to sale. Such brokers
or dealers and any other participating brokers or dealers may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with such
sales and any discounts and commissions received by them and any profit realized
by them on the resale of the Securities may be deemed to be underwriting
discounts and commissions under the Securities Act.
The amount of Securities to be reoffered or resold by means of this
Prospectus by any individual shareholder, and any person with whom such
shareholder is acting in consent for the purpose of selling Securities, may not
exceed, during any three-month period, the greater of (i) one percent of the
shares of Common Stock outstanding as shown by the most recent report of
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statement published by the Company or (ii) the average weekly reported volume of
trading in shares of Common Stock reported through the NASDAQ National Market
during the four calendar weeks preceding the date of the reoffer or resale.
There is no assurance that any of the Selling Shareholders will offer
for sale or sell any or all of the Securities covered by this Prospectus.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Gibson,
Dunn & Crutcher LLP, Los Angeles, California.
EXPERTS
The consolidated financial statements of Summit Care Corporation
appearing in Summit Care Corporation's Annual Report on Form 10-K for the year
ended June 30, 1996 have been audited by Ernst & Young, LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
NO DEALER, SALES REPRESENTATIVE OR ANY OTHER PERSON HAS BEEN AUTHORIZED
TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE SELLING
SHAREHOLDERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF ANY OFFER TO BUY, COMMON STOCK BY ANYONE IN ANY JURISDICTION IN
WHICH SUCH AN OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE AN IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO ITS DATE.
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ANNEX I
Selling Shareholder* Shares To Be Offered Hereby
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Neal Maslan 600
Jesse Martinez 13,500
Judy Marolda 5,000
Melodye Stok 5,500
Rochelle Krugler 1,200
Frank Tamba 7,000
Victoria MacKemy 3,200
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36,000
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* In addition, certain unnamed shareholders who are not affiliates of the
Company, as defined by Rule 405 under the Act, may also sell shares of
Common Stock pursuant to this Prospectus, provided that each such
shareholder holds less than 1,000 shares.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed
with the Securities and Exchange Commission are hereby incorporated in this
Registration Statement by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
June 30, 1996, as filed on September 6, 1996 with the Security
and Exchange Commission pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended;
(2) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, No. 0-19411, as
filed with the Securities and Exchange Commission on July 17,
1991, and any amendment or report filed with the Commission
for the purpose of updating such description of Common Stock;
(3) The Company's Quarterly Report on Form 10-Q for the period
ended September 30, 1996, as filed with the Securities and
Exchange Commission on November 8, 1996;
(4) The Company's Quarterly Report on Form 10-Q for the period
ended December 31, 1996, as filed with the Securities and
Exchange Commission on February 13, 1997; and
(5) The Company's Quarterly Report on Form 10-Q for the period
ended March 31, 1997, as filed with the Securities and
Exchange Commission on May 14, 1997.
All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a) and 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder have been sold
or which deregisters all such 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 reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As allowed by the California General Corporation Law, the
Company's Articles of Incorporation provide that the liability of the directors
of the Company for monetary damages
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shall be eliminated to the fullest extent permissible under California law. This
is intended to eliminate the personal liability of a director for monetary
damages in an action brought by or in the right of the Company for breach of a
director's duties to the Company or its shareholders except for liability: (i)
for acts or omissions that involve intentional misconduct or a knowing and
culpable violation of law; (ii) for acts or omissions that a director believes
to be contrary to the best interests of the Company or its shareholders or that
involve the absence of good faith on the part of the director; (iii) for any
transaction from which a director derived an improper personal benefit; (iv) for
acts or omissions that show a reckless disregard for the director's duty to the
Company or its shareholders in circumstances in which the director was aware, or
should have been aware, in the ordinary course of performing a director's
duties, of a risk of serious injury to the Company or its shareholders; (v) for
acts or omissions that constitute an unexcused pattern of inattention that
amounts to an abdication of the director's duty to the Company or its
shareholders; (vi) with respect to certain transactions or the approval of
transactions in which a director has a material financial interest; and (vii)
expressly imposed by statute, for approval of certain improper distributions to
shareholders of certain loans or guarantees. This provision does not limit or
eliminate the rights of the Company or any shareholder to seek non-monetary
relief such as an injunction or rescission in the event of a breach of a
director's duty of care.
The Company's Bylaws permit it to indemnify its directors and officers
to the full extent permitted by law. In addition, the Company's Articles of
Incorporation expressly authorize the use of indemnification agreements, and the
Company has entered into separate indemnification agreements with each of its
directors and its executive officers. These agreements require the Company to
indemnify its officers and directors to the full extent permitted by law,
including circumstances in which indemnification would otherwise be
discretionary. Among other things, the agreements require the Company to
indemnify directors and officers against certain liabilities that may arise by
reason of their status or service as directors and officers and to advance their
expenses incurred as a result of any proceeding against them as to which they
could be indemnified.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The securities to be offered for resale by means of this Prospectus
were originally issued by the Company in reliance upon the exemption from the
registration requirements of the Securities Act provided by Section 4(2) of the
Securities Act. Such securities were issued to certain employees in transactions
not involving public offerings.
ITEM 8. EXHIBITS.
4.1 Summit Care Corporation Stock Option Plan, as amended
(including amendments).
4.2 Form of Summit Care Corporation Stock Option Agreement
(incorporated by reference to Exhibit 10.2 to the Registrant's
Form S-1 Registration Statement No. 33-40778, filed with the
Securities and Exchange Commission on May 23, 1991)
4.3 Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Form
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S-1 Registration Statement No. 33-40778, filed with the
Securities and Exchange Commission on May 23, 1991)
4.4 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3.3 to Amendment No. 2 to the
Registrant's Form S-1 Registration Statement No. 33-40778,
filed with the Securities and Exchange Commission on July 3,
1991)
5.1 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Ernst & Young, LLP
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit
5.1)
24.1 Power of Attorney (included on page II-5 of this 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. 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 and 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) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the
II-3
14
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 the Registrant's annual report pursuant to Section 13(a) or Section
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.
(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 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.
II-4
15
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 Burbank, California, on this 30th day of June, 1997.
SUMMIT CARE CORPORATION
By /s/ WILLIAM C. SCOTT
---------------------------
William C. Scott
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints WILLIAM C. SCOTT and DERWIN L. WILLIAMS,
or either of them, his or her attorneys-in-fact and agents, with full power of
substitution, for him or her in any and all capacities, to sign any amendments
to this Registration Statement, including post-effective amendments, and to file
the same, with exhibits thereto and all 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 and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, and hereby ratifying and confirming all that said
attorneys-in-fact, or their substitutes, may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ WILLIAM C. SCOTT Chairman of the Board, June 30, 1997
- --------------------------- Chief Executive Officer
William C. Scott and Director
(Principal Executive Officer)
/s/ DERWIN L. WILLIAMS Senior Vice President-Finance June 30, 1997
- --------------------------- (Principal Financial Officer)
Derwin L. Williams
/s/ DONALD J. AMARAL Director June 30, 1997
- ---------------------------
Donald J. Amaral
/s/ JOHN A. BRENDE Director June 30, 1997
- ---------------------------
John A. Brende
/s/ WILLIAM J. CASEY Director June 30, 1997
- ---------------------------
William J. Casey
/s/ KEITH B. PITTS Director June 30, 1997
- ---------------------------
Keith B. Pitts
/s/ GARY L. MASSIMINO Director June 30, 1997
- ---------------------------
Gary L. Massimino
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16
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION.
----------- ------------
4.1 Summit Care Corporation Stock Option Plan, as amended
(including amendments).
4.2 Form of Summit Care Corporation Stock Option Agreement
(incorporated by reference to Exhibit 10.2 to the Registrant's
Form S-1 Registration Statement No. 33-40778, filed with the
Securities and Exchange Commission on May 23, 1991)
4.3 Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Form S-1 Registration Statement No. 33-40778,
filed with the Securities and Exchange Commission on May 23,
1991)
4.4 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3.3 to Amendment No. 2 to the
Registrant's Form S-1 Registration Statement No. 33-40778,
filed with the Securities and Exchange Commission on July 3,
1991)
5.1 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Ernst & Young, LLP
23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit
5.1)
24.1 Power of Attorney (included on page II-5 of this Registration
Statement)