AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 25, 1998
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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Total Renal Care Holdings, Inc. Special Purpose Option 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 1,382,421 $30.875 $42,682,248 $12,595
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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 February 23, 1998, 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.
The validity of the issuance of the shares of Common Stock registered
hereby (the "Shares") has been passed upon for the Company by Barry C. Cosgrove,
General Counsel of the Company. Mr. Cosgrove holds Common Stock and options to
purchase Common Stock granted under the Company's employee stock plans which in
the aggregate represent less than 1% of the Common Stock.
II-1
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.
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 Total Renal Care Holdings, Inc. Special Purpose Option Plan.
5.1 Opinion of Barry C. Cosgrove, General Counsel, Total Renal Care
Holdings, Inc.
23.1 Consent of Barry C. Cosgrove, General Counsel, Total Renal Care
Holdings, Inc. (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of KPMG Peat Marwick LLP.
23.4 Consent of Maier Markey & Menashi 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 February 25, 1998.
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 Executive February 25, 1998
- ------------------------ Officer, and Director
Victor M.G. Chaltiel
/s/ JOHN E. KING Vice President, Finance and February 25, 1998
- ------------------------ Chief Financial Officer
John E. King
/s/ MARIS ANDERSONS
- ------------------------ Director February 25, 1998
Maris Andersons
/s/ PETER T. GRAUER
- ------------------------ Director February 25, 1998
Peter T. Grauer
/s/ REGINA E. HERZLINGER
- ------------------------ Director February 25, 1998
Regina E. Herzlinger
/s/ SHAUL G. MASSRY
- ------------------------ Director February 25, 1998
Shaul G. Massry
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INDEX TO EXHIBITS
Sequentially
Numbered
Exhibit Description Page Number
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4.1 Total Renal Care Holdings, Inc. Special Purpose Option Plan.
5.1 Opinion of Barry C. Cosgrove, General Counsel, Total Renal Care Holdings,
Inc.
23.1 Consent of Barry C. Cosgrove, General Counsel, Total Renal Care Holdings,
Inc. (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of KPMG Peat Marwick LLP.
23.4 Consent of Maier Markey & Menashi LLP.
24.1 Powers of Attorney (included on page II-4).
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