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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CHEMED CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 31-0791746
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2600 Chemed Center, Cincinnati, Ohio 45202
(Address of principal executive offices) (Zip Code)
2004 STOCK INCENTIVE PLAN
(Full title of the plan)
NAOMI C. DALLOB
2600 Chemed Center, 255 East Fifth Street
Cincinnati, Ohio 45202
(Name and address of agent for service)
(513) 762-6900
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
Securities maximum maximum
to be Amount offering aggregate Amount of
registration to be price offering registration
registered registered* per share** price** fee
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Capital Stock
(Par value $1 700,000 shs. $49.56 $34,692,000 $4,395.48
per share)
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*The number of shares being registered is the number of shares covered
by the 2004 Stock Incentive Plan. In addition to such shares, this Registration
Statement covers an indeterminate number of shares which, by reason of certain
events specified in such Plan, may become subject to issuance thereunder.
**Estimated solely for the purpose of calculating registration fee.
This amount is based on (1) a price of $43.36 per share for outstanding options
to purchase 2,969 shares, (2) a price of $43.55 per share for outstanding
options to purchase 289,630 shares, (3) a price of $50.78 per share for
outstanding options to purchase 22,000 shares, and (4) a price of $54.05 per
share based on the average of the high and low price of a share of capital stock
reported on the New York Stock Exchange on August 26, 2004 for 385,401 shares.
EXPLANATORY NOTE
This registration statement is being filed to register 640,070 shares
of capital stock for future issuance pursuant to the 2004 Stock Incentive Plan.
The documents constituting the prospectus under Part I of this registration
statement for the 2004 Stock Incentive Plan are not set forth herein but will be
sent or given to the participants in the 2004 Stock Incentive Plan as specified
by Rule 428(b) under the Securities Act of 1933, as amended. That prospectus has
been omitted from this registration statement as permitted by Part I of Form
S-8.
This registration statement is also being filed to register for resale
59,930 shares of capital stock previously awarded as restricted stock under the
2004 Stock Incentive Plan and to establish a reoffer prospectus in accordance
with the requirements of Part I of Form S-3 and pursuant to General Instruction
C of Form S-8 to be used in connection with the reoffer and resale of those
shares of capital stock.
REOFFER PROSPECTUS
CHEMED CORPORATION
(FORMERLY ROTO-ROOTER, INC.)
59,930 SHARES OF
CAPITAL STOCK
We are registering 59,930 shares of capital stock for offer and sale
from time to time by the selling stockholders named in this prospectus. We will
not receive any of the proceeds from the sale of these shares of capital stock.
This prospectus should be read in conjunction with the documents
incorporated by reference herein.
Our capital stock is listed on the New York Stock Exchange under the
symbol "CHE."
The shares covered by this prospectus may be offered for sale from
time to time on the New York Stock Exchange or otherwise, at prices then
obtainable. The selling stockholders listed in this prospectus may sell any, all
or none of the shares offered by this prospectus. See "Plan of Distribution"
beginning on page 11 for a discussion of these and other distribution matters.
INVESTING IN OUR CAPITAL STOCK INVOLVES RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 4, AND THE RISK FACTORS INCORPORATED HEREIN BY REFERENCE, FOR
A DISCUSSION OF THE RISKS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR CAPITAL
STOCK.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED
UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is September 1, 2004.
TABLE OF CONTENTS
PAGE
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Summary......................................................................2
Risk Factors.................................................................4
Note on Forward-Looking Statements...........................................6
Use of Proceeds..............................................................7
Selling Stockholders.........................................................7
Description of Capital Stock................................................10
Plan of Distribution........................................................12
Legal Matters...............................................................14
Experts.....................................................................14
Where You Can Find More Information.........................................14
Incorporation By Reference..................................................14
Market Data.................................................................15
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SUMMARY
THE FOLLOWING SUMMARY CONTAINS BASIC INFORMATION ABOUT THE COMPANY AND
THIS OFFERING. BECAUSE THIS IS A SUMMARY, IT NECESSARILY DOES NOT CONTAIN ALL
THE INFORMATION THAT MAY BE IMPORTANT TO YOU. FOR A MORE COMPLETE UNDERSTANDING
OF THE OFFERING, WE ENCOURAGE YOU TO CAREFULLY READ THIS ENTIRE PROSPECTUS,
INCLUDING THE "RISK FACTORS" SECTION, AND THE DOCUMENTS INCORPORATED BY
REFERENCE HEREIN. WHEN WE REFER TO "CHEMED," "THE COMPANY," "WE," "OUR" AND "US"
IN THIS PROSPECTUS WE MEAN CHEMED CORPORATION AND ITS SUBSIDIARIES UNLESS THE
CONTEXT INDICATES OTHERWISE.
BUSINESS OF THE COMPANY
We are involved in three lines of business: plumbing and drain
cleaning services, heating/air-conditioning repair, and hospice care. We entered
the hospice care business when we acquired the remaining 63% of Vitas Healthcare
Corporation ("Vitas") that we did not previously own on February 24, 2004.
We believe our Roto-Rooter business is the largest provider of
plumbing and drain cleaning services in North America, providing repair and
maintenance services to residential and commercial accounts. We operate through
more than 100 company-owned branches and independent contractors and 500
franchisees. We offer services to more than 90% of the U.S. population and
approximately 55% of the Canadian population. We also have licensed master
franchisees in Australia, China, Indonesia, Japan, Mexico, the Philippines and
the United Kingdom.
Our Service America business provides residential and commercial
appliance and heating/air-conditioning repair, maintenance and replacement
services. It also sells air conditioning equipment and duct cleaning services.
Vitas is the nation's largest provider of hospice services for
patients with severe, life-limiting illnesses. This type of care is aimed at
making the terminally ill patient's final days as comfortable and pain free as
possible. Hospice care is typically available to patients who have been
initially certified as terminally ill (i.e., a prognosis of six months or less).
Vitas' hospice operations began in South Florida in 1978, and Vitas
was incorporated as a for-profit corporation in 1983. Today, Vitas provides a
comprehensive range of hospice services through 25 operating programs covering
many of the large population areas in the U.S., including Florida, California,
Texas and Illinois. Vitas has over 6,000 employees including approximately 2,400
nurses and 1,500 home health aides.
We are a holding company and derive all of our operating income from
our subsidiaries.
The Company's name was Roto-Rooter, Inc. until May 17, 2004, when its
name became Chemed Corporation.
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THE OFFERING
Securities Offered..............59,930 shares of capital stock of Chemed.
Use of Proceeds.................The Company will not receive any proceeds from
sales of capital stock by the selling
stockholders pursuant to this prospectus.
Capital Stock...................Our capital stock is listed on the New York
Stock Exchange under the symbol "CHE."
OUR ADDRESS
Our executive offices are located at 225 E. Fifth Street, Cincinnati,
Ohio 45202, and our telephone number is (513) 762-6900. Our website is located
at http://www.chemed.com. The information on our website is not part of this
prospectus.
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RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS AND ALL OF
THE INFORMATION AND THE RISK FACTORS SET FORTH IN THIS PROSPECTUS AND
INCORPORATED BY REFERENCE HEREIN BEFORE DECIDING TO INVEST IN THE CAPITAL STOCK.
THE RISKS DESCRIBED BELOW AND INCORPORATED BY REFERENCE HEREIN ARE NOT THE ONLY
ONES FACING OUR COMPANY. ADDITIONAL RISKS NOT NOW KNOWN TO US OR THAT WE
CURRENTLY DEEM IMMATERIAL MAY ALSO IMPAIR OUR BUSINESS OPERATIONS.
OUR STOCK PRICE MAY FLUCTUATE SIGNIFICANTLY.
The market price of our capital stock could fluctuate significantly in
response to variations in quarterly operating results and other factors, such
as:
- changes in our business, operations or prospects;
- developments in our relationships with our customers;
- announcements of new products or services by us or by our
competitors;
- announcement or completion of acquisitions by us or by our
competitors;
- changes in existing or adoption of additional government
regulations;
- unfavorable or reduced analyst coverage; and
- prevailing domestic and international market and economic
conditions.
In addition, the stock market has experienced significant price
fluctuations in recent years. Many companies experienced material fluctuations
in their stock price that were unrelated to their operating performance. Broad
market fluctuations, general economic conditions and specific conditions in the
industries in which we operate may adversely affect the market price of our
capital stock.
LIMITED TRADING VOLUME OF OUR CAPITAL STOCK MAY CONTRIBUTE TO ITS PRICE
VOLATILITY.
Our capital stock is traded on the New York Stock Exchange, or NYSE.
During the year ended December 31, 2003, the average daily trading volume for
our capital stock as reported by the NYSE was approximately 41,475 shares. We
are uncertain whether a more active trading market in our capital stock will
develop. Also, many investment banks no longer find it profitable to provide
securities research on small-cap and mid-cap companies. If analysts were to
discontinue coverage of our capital stock, our trading volume may be further
reduced. As a result, relatively small trades may have a significant impact on
the market price of our capital stock, which could increase the volatility and
depress the price of our capital stock.
FUTURE SALES OF OUR CAPITAL STOCK MAY CAUSE OUR STOCK PRICE TO DECLINE.
In the future, we may sell additional shares of our capital stock in
public or private offerings, and we may also issue additional shares of our
capital stock to finance future acquisitions. Shares of our capital stock are
also available for future sale pursuant to stock
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options that we have granted to our employees, and in the future we may grant
additional stock options to our employees. Sales of substantial amounts of our
capital stock, or the perception that such sales could occur, may adversely
affect prevailing market prices for shares of our capital stock and could impair
our ability to raise capital through future offerings.
WE ARE SUBJECT TO CERTAIN ANTI-TAKEOVER STATUTES THAT MIGHT MAKE IT MORE
DIFFICULT TO EFFECT A CHANGE IN CONTROL OF THE COMPANY.
We are subject to the anti-takeover provisions of Section 203 of the
Delaware General Corporation Law, which prohibits us from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless the business combination is approved in a prescribed manner.
The application of Section 203 could have the effect of delaying or preventing a
change of control that could be advantageous to stockholders.
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NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements within the meaning
of the federal securities laws. These forward-looking statements generally can
be identified by use of statements that include words such as "anticipate,"
"estimate," "expect," "project," "intend," "plan," "believe" and other words and
terms of similar meaning, although not all forward-looking statements contain
such words. Statements that describe our objectives, plans or goals are also
forward-looking statements. These forward-looking statements are subject to
risks and uncertainties which could cause actual results to differ materially
from those currently anticipated. Factors that could materially affect these
forward-looking statements can be found in our periodic reports filed with the
Securities and Exchange Commission (the "SEC") and herein under the heading
"Risk Factors." Potential investors and other readers are urged to consider
these factors carefully in evaluating the forward-looking statements and are
cautioned not to place undue reliance on these forward-looking statements. The
forward-looking statements included in this prospectus are made only as of the
date of this prospectus, and we undertake no obligation to publicly update these
forward-looking statements to reflect new information, future events or
otherwise. In light of these risks, uncertainties and assumptions, the
forward-looking events might or might not occur. We cannot assure you that
projected results or events will be achieved.
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USE OF PROCEEDS
The Company will not receive any proceeds from sales of capital stock
by the selling stockholders pursuant to this prospectus.
SELLING STOCKHOLDERS
This prospectus relates to the resale of shares of our capital stock
that have been acquired by the selling stockholders pursuant to awards of
restricted stock under our 2004 Stock Incentive Plan.
Each of the selling stockholders is an employee of the Company or a
subsidiary of the Company.
Except for certain selling stockholders who are excluded as described
below, the following table sets forth for each selling stockholder, to the
extent known by us:
- The name of each selling stockholder;
- The principal position or office each selling stockholder has
had with Chemed or its affiliates within the past three years;
- The number of shares of our capital stock beneficially owned
by each selling stockholder prior to the offering;
- The number of shares of our capital stock being offered in the
offering, some of which shares may be sold pursuant to this
prospectus; and
- the number of shares of our capital stock and the percentage,
if 1% or more, of outstanding capital stock to be owned by
each selling stockholder after completion of the offering
based upon the number of shares outstanding at July 31, 2004,
assuming the sale pursuant to the offering of all shares being
offered.
This table may be expanded or supplemented in prospectus supplements as
new information becomes available to us. All information contained in the table
below is based upon information provided to us by the selling stockholders, and
we have not independently verified this information.
This table excludes certain unnamed non-affiliates, each of whom (a)
holds less than the lesser of 1,000 shares of our capital stock or 1% of the
shares of our capital stock issuable under our 2004 Stock Incentive Plan, and
(b) may use this prospectus for reoffers and resales of up to 500 shares of our
capital stock.
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SHARES BENEFICIALLY
OWNED AFTER THIS
OFFERING
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SHARES BENEFICIALLY
PRINCIPAL POSITION OR OWNED BEFORE THIS SHARES OFFERED UNDER
SELLING STOCKHOLDER OFFICE OFFERING (1) (2) THIS PROSPECTUS NUMBER PERCENT
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Richard L. Arquilla President & COO of 30,485 1,500 28,985 *
Roto-Rooter Services Company
Gary C. Burger President of Roto-Rooter 22,059 700 21,359 *
Corporation
Mark B. Cohen V.P. Communications & 2,069 2,069 0 *
Public Relations of Vitas
Healthcare, Inc.
Naomi C. Dallob V.P. & Secretary of Chemed 16,625 1,000 15,625 *
Corporation
Lisa A. Dittman Asst. Secretary of Chemed 3,886 500 3,386 *
Corporation
Ronald Fried V.P. Development of Vitas 1,951 1,951 0 *
Healthcare, Inc.
Robert P. Goldschmidt Sr. V.P. Business 20,978 700 20,278 *
Development of Roto-Rooter
Services Company
Thomas C. Hutton V.P. of Chemed Corporation 78,435 1,000 77,435 *
Barry Kinzbrunner V.P. Clinical Research 2,668 2,668 0 *
Analysis & Audit; National
Medical Director of Vitas
Healthcare, Inc.
Deirdre Lawe Exec. V.P. Strategic 12,805 12,805 0 *
Development Services of
Vitas Healthcare, Inc.
Spencer S. Lee Chairman & CEO of 58,056 2,000 56,056 *
Roto-Rooter Services Company
Kevin J. McNamara Pres. & CEO of Chemed 160,935 5,200 155,735 1.28%
Corporation
John M. Mount Pres. & CEO of Service 25,852 700 25,152 *
America Network, Inc.
Timothy S. O'Toole Exec. V.P. of Chemed 101,169 3,000 98,169 *
Corporation; CEO of Vitas
Healthcare, Inc.
Thomas J. Reilly V.P. of Chemed Corporation 8,735 1,000 7,735 *
Gary H. Sander Exec. V.P. of Roto-Rooter 17,241 700 16,541 *
Services Company
Arthur V. Tucker, Jr. V.P. & Controller of Chemed 74,398 1,500 72,898 *
Corporation
David P. Williams V.P & CFO of Chemed 52,574 2,500 50,074 *
Corporation
Judith Rybka V.P. Market Development 1,435 1,435 0 *
Vitas Healthcare Corporation
Patricia Husted V.P. Hospice Program 1,484 1,484 1,484 *
Resources Vitas Healthcare
Corporation
Ian Viente V.P. Hospice Operations 4,018 4,018 0 *
Vitas Healthcare Corporation
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Dian Backoff General Manager 1,000 1,000 0 *
Broward
Vitas Healthcare Corp.
Brian Payne General Manager 1,000 1,000 0 *
Miami
Vitas Healthcare Corp.
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* Less than one percent
(1) Includes shares of our capital stock beneficially owned (a) by the
named persons, their spouses, and their minor children (including
shares of capital stock allocated as of July 31, 2004, to the account
of each named person under our Retirement Plan and under our ESOP), (b)
by trusts and custodianships for their benefit, and (c) by trusts and
other entities as to which the named person has or shares the power to
direct voting or investment of shares. For such purposes, shares
subject to stock options are included if the named person has the right
to acquire such shares within 60 days after July 31, 2004.
(2) Messrs. Hutton and McNamara are trustees of the Chemed Foundation,
which as of July 31, 2004 held 60,738 shares of our capital stock
over which trustees share both voting and investment power. This number
is not reflected in the respective holdings of the individual trustees.
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DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is only a summary of
the detailed provisions of our certificate of incorporation, as amended, and by-
laws, as amended. These statements do not purport to be complete, or to give
full effect to the provisions of statutory or common law, and are subject to,
and are qualified in their entirety by reference to, the terms of our
certificate of incorporation and by-laws. We encourage you to read our
certificate of incorporation and by-laws which have been filed with the SEC and
are incorporated by reference in this prospectus for a more complete
description.
GENERAL
Our authorized capital stock consists of 40,000,000 shares of
capital stock, par value $1.00 per share. Our certificate of incorporation does
not authorize the issuance of shares of preferred stock. As of July 31, 2004, we
had 12,518,675 shares of capital stock outstanding. In addition, as of July 31,
2004, an aggregate of 1,360,575 shares of our capital stock were issuable upon
the exercise of outstanding options and 364,078 shares were reserved for
issuance under our stock incentive plans.
RIGHTS OF HOLDERS OF OUR CAPITAL STOCK
Stockholders are entitled to one vote for each share of our capital
stock held of record on all matters on which stockholders are entitled or
permitted to vote. Our capital stock does not have cumulative voting rights in
the election of directors. As a result, holders of a majority of the shares of
our capital stock voting for the election of directors can elect all the
directors standing for election. Holders of our capital stock are entitled to
receive dividends out of legally available funds when and if declared from time
to time by our Board of Directors. In the event of our liquidation, dissolution
or winding up, the holders of our capital stock will be entitled to share
ratably in all assets remaining after payment of liabilities. Our capital stock
has no preemptive, subscription or conversion rights, and there are no
redemption or sinking fund provisions in our certificate of incorporation. The
outstanding shares of our capital stock are fully paid and nonassessable.
CORPORATE GOVERNANCE PROVISIONS OF OUR BY-LAWS
Our by-laws provide that stockholders may act by written consent
without a meeting if consents in writing, setting forth the action taken, are
signed by the holders of record of shares having not less than the minimum
voting power that would be necessary to take such action at a meeting at which
all shares entitled to vote thereon were present and voted. Our by-laws provide
that special meetings of stockholders may be called at any time by the Chairman,
President or the Secretary of the Company or upon the written request of a
majority of the Board of Directors or of the holders of record of shares having
a majority of the voting power of the capital stock of the Company then entitled
to vote for the election of directors. Our by-laws provide that the number of
directors will be fixed from time to time by resolution of the Board of
Directors or, in the absence thereof, will be the number of directors elected at
the preceding annual meeting of the stockholders. Our by-laws provide that the
Board of Directors must constitute no fewer than 3 and no more than 40
directors. Our Board of Directors currently consists of 11 directors.
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SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
We are a Delaware corporation that is subject to Section 203 of the
Delaware General Corporation Law. Section 203 provides in general that a
stockholder acquiring more than 15% of the outstanding voting stock of a
corporation subject to Section 203 but less than 85% of such stock may not
engage in a Business Combination, as defined in Section 203, with the
corporation for a period of three years from the date on which that stockholder
became an Interested Stockholder, as defined in Section 203, unless (1) prior to
such date the corporation's board of directors approved either the Business
Combination or the transaction in which the stockholder became an Interested
Stockholder or (2) the Business Combination is approved by the corporation's
board of directors and authorized by the holders of at least 66% of the
outstanding voting stock of the corporation not owned by the Interested
Stockholder. A "Business Combination" includes a merger, asset sale or other
transaction resulting in a financial benefit to a stockholder. A Delaware
corporation may "opt out" of Section 203 with an express provision in its
original certificate of incorporation or an express provision in its certificate
of incorporation or by-laws resulting from amendments approved by holders of at
least a majority of a corporation's outstanding voting shares. We have not
"opted out" of the provisions of Section 203.
LIMITATIONS ON LIABILITY AND INDEMNIFICATION OF OFFICERS AND DIRECTORS
Our certificate of incorporation provides that to the fullest extent
permitted by the Delaware General Corporation Law, no director will be liable to
us or our stockholders for monetary damages for breach of fiduciary duty as a
director. Under the Delaware General Corporation Law, liability of a director
may not be limited:
- for any breach of the director's duty of loyalty to us or our
stockholders,
- for acts or omissions not in good faith or that involve
intentional misconduct or knowing violation of law,
- in respect of certain unlawful dividend payments or stock
redemptions or repurchases, and
- for any transaction from which the director derives an
improper personal benefit.
The effect of this provision of our certificate of incorporation is to eliminate
our rights and the rights of our stockholders to recover monetary damages
against a director for breach of the fiduciary duty of care as a director,
including breaches resulting from negligent or grossly negligent behavior,
except in the situations described above. This provision does not limit or
eliminate our rights or the rights of any stockholder to seek non- monetary
relief such as an injunction or rescission in the event of a breach of a
director's duty of care. In addition, our by-laws provide that we will indemnify
our directors, officers, employees and agents to the fullest extent permitted by
the Delaware General Corporation Law. We may purchase and maintain insurance or
furnish similar protection on behalf of any officer or director against any
liability asserted against the officer or director and incurred by the officer
or director in such capacity, or arising out of the status, as an officer or
director.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our capital stock is Wells
Fargo Bank, N.A.
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PLAN OF DISTRIBUTION
The selling stockholders, or their pledgees, donees, transferees, or
any of their successors in interest selling shares received from a selling
stockholder as a gift, partnership distribution or other non-sale-related
transfer after the date of this prospectus (all of whom may be selling
stockholders), may sell the shares of capital stock from time to time after the
date of this prospectus on any stock exchange or automated interdealer quotation
system on which the capital stock is listed, in the over-the-counter market, in
privately negotiated transactions or otherwise, at fixed prices that may be
changed, at market prices prevailing at the time of sale, at prices related to
prevailing market prices or at prices otherwise negotiated. The selling
stockholders may sell the shares of capital stock by one or more of the
following methods, without limitation:
(a) ordinary brokerage transactions (including block trades) and
transactions in which the broker solicits purchases;
(b) private sales or private transactions;
(c) one or more underwritten offerings on a firm commitment or
best efforts basis; and
(d) a combination of any of these methods of sale or any other
legally available means, whether or not described in this
prospectus.
At the time a particular offering of shares is made hereunder, to
the extent required by Rule 424 under the Securities Act of 1933, we will file a
prospectus supplement setting forth:
(a) the number of shares involved;
(b) the names of any underwriters, dealers or agents;
(c) the price at which the shares are being offered or purchased;
(d) any commissions or discounts or concessions allowed to
broker-dealers;
(e) any discounts, commissions or other items constituting
compensation from the selling stockholder; and
(f) any other facts material to the transaction.
In connection with sales of the shares of capital stock, the selling
stockholders may enter into hedging transactions with broker-dealers only to the
extent permitted by the Securities Act and any applicable securities laws of any
state of the United States. These broker-dealers may in turn engage in short
sales of the shares of capital stock and deliver shares of capital stock to
close out such short positions, or loan or pledge shares of capital stock to
broker-dealers that may in turn sell such securities. A selling stockholder may
pledge or grant a security interest in some or all of the shares of capital
stock that it owns and, if it defaults in the performance of its secured
obligations, the pledgees or secured parties may offer and sell the shares of
capital stock from time to time pursuant to this prospectus. The selling
stockholders may also transfer and donate shares of capital stock in other
circumstances, in which case the transferees, donees, pledgees or other
successors in interest will be selling stockholders for the purposes of this
prospectus.
All costs, expenses and fees in connection with the registration of
the shares offered hereby will be borne by the Company. Brokerage commissions
and similar selling expenses, if any, attributable to the sale of shares will
be borne by the selling stockholders.
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To our knowledge, there are currently no plans, arrangements or
understanding between any selling stockholders and any underwriters,
broker-dealer or agent regarding the sale of the shares of capital stock by the
selling stockholders.
The shares of capital stock registered hereby were issued on May 17,
2004, June 22, 2004, July 26, 2004 and August 6, 2004 as awards of restricted
stock under our 2004 Stock Incentive Plan in transactions exempt from the
registration requirements of the Securities Act. We intend to keep the
registration statement of which this prospectus is a part effective until the
earlier of the date on which the selling stockholders have sold all of the
shares, the shares covered hereby are no longer outstanding or the holders are
entitled to sell their shares under Rule 144 under the Securities Act.
The selling stockholders and any other person participating in such
distribution will be subject to the Exchange Act rules, including, without
limitation, Regulation M, which may limit the timing of purchases and sales of
any of the shares of capital stock by the selling stockholders and any such
other person. In addition, Regulation M of the Exchange Act may restrict the
ability of any person engaged in the distribution of the shares of capital stock
to engage in market-making activities with respect to the shares of capital
stock being distributed for a period of up to five business days prior to the
commencement of distribution. This may affect the marketability of the shares of
capital stock and the ability of any person or entity to engage in market-making
activities with respect to the shares of capital stock.
The Company will not receive any proceeds from sales of any shares
by the selling stockholders.
Because we can not assure you that the selling stockholders will
sell all or any portion of the shares offered hereby, we cannot estimate how
many shares of capital stock that the selling stockholders will hold upon
consummation of any sale.
We may suspend the use of this prospectus by a selling stockholder
under certain circumstances.
Any capital stock sold by a selling stockholder pursuant to this
prospectus will be listed on the New York Stock Exchange, subject to official
notice of issuance.
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LEGAL MATTERS
The validity of the shares of capital stock will be passed upon for
us by Naomi C. Dallob, Esq., our Vice President and Secretary. Ms. Dallob owns
shares of capital stock of the Company and stock options to acquire shares of
capital stock of the Company.
EXPERTS
The financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K for the year ended December 31, 2003
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on the authority
of said firm as experts in auditing and accounting.
The consolidated financial statements of Vitas as of September 30,
2003 and 2002, and for each of the three years in the period ended September 30,
2003, incorporated by reference from our Form 8-K/A filed on February 23, 2004
with the SEC, have been audited by Ernst & Young LLP, independent auditors, as
set forth in their report thereon included therein and incorporated herein in
reliance upon such report given on the authority of such firm as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-8 with
respect to the capital stock offered in this prospectus. This prospectus does
not contain all of the information set forth in the registration statement and
the exhibits to that registration statement. For further information with
respect to us and the capital stock, we refer you to the registration statement
and its exhibits. We also file annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and copy any
document we file at the Public Reference Room of the SEC, 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available to
the public from the SEC's website at http://www.sec.gov and on our website at
http://www.chemed.com. Reports and other information concerning us can also be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005, phone (212) 656-5060. Our capital stock is listed and
traded on the New York Stock Exchange under the trading symbol "CHE." With the
exception of the documents we file with the SEC, the information contained on
our website is not incorporated by reference in this prospectus and you should
not consider it a part of this prospectus.
INCORPORATION BY REFERENCE
We are incorporating by reference the information that we file with
the SEC, which means that we are disclosing important information to you in
those documents. The information incorporated by reference is an important part
of this prospectus, and the information that we subsequently file with the SEC
will automatically update and supercede information in this prospectus and in
our other filings with the SEC. We incorporate by reference the documents listed
below, which we have already filed with the SEC, and any future filings we make
with the
-14-
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 until all of the shares of capital stock are sold by the selling
stockholders; we are not, however, incorporating by reference any documents or
portions thereof, whether specifically listed below or filed in the future, that
are not deemed "filed" with the SEC, including any information furnished
pursuant to Items 9 or 12 of Form 8-K:
- Annual Report on Form 10-K for the year ended December 31,
2003 filed on March 12, 2004; and
- Amended Current Report on Form 8-K/A filed on February 23,
2004, Current Report on Form 8-K filed on February 24, 2004,
Current Report on Form 8-K filed on April 7, 2004, Current
Report on Form 8-K filed on May 18, 2004, Current Report on
Form 8-K filed on May 27, 2004, Current Report on Form 8-K
filed on July 2, 2004, and Current Report on Form 8-K filed on
August 4, 2004.
Any statement contained in this prospectus, or in a document all or
a portion of which is incorporated by reference in this prospectus, will be
deemed to be modified or superceded for purposes of this prospectus to the
extent that a statement contained in this prospectus modifies or supercedes the
statement. Any such statement or document so modified or superceded will not be
deemed, except as so modified or superceded, to constitute a part of this
prospectus.
You may request a copy of any of our filings with the SEC, or any of
the agreements or other documents that constitute exhibits to those filings, at
no cost, by writing or telephoning us at the following address or phone number:
Chemed Corporation
c/o Investor Relations
2600 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4726
Telephone: (800) 224-3622 or (513) 762-6463
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE ELSE TO PROVIDE YOU
WITH ADDITIONAL OR DIFFERENT INFORMATION. YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON
THE FRONT COVER OF THIS PROSPECTUS.
MARKET DATA
The market data and certain industry forecasts contained or
incorporated by reference in this prospectus are based on internal surveys,
market research, publicly available information, industry publications or good
faith estimates of our management. Industry publications generally state that
the information contained therein has been obtained from sources believed to be
reliable, but that the accuracy and completeness of such information is not
guaranteed. Similarly, internal surveys, industry forecasts and market research,
while believed to be reliable, have not been independently verified, and we make
no representation as to the accuracy of such information.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement.
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2003;
(2) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") for period
since December 31, 2003;
(3) The Company's Proxy Statement dated April 5, 2004; and
(4) The "Description of Capital Stock" incorporated by reference in
the Company's Registration Statement on Form S-3 filed on November 26, 1991,
including any amendments or reports filed to update such description.
All documents filed by the Company pursuant to Section 13, 14 or
15(d) of the Exchange Act after the date of this Registration Statement 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 thereof from the date any such documents
are filed.
Item 4. Description of Securities
N/A
Item 5. Interest of Named Experts and Counsel
Legal matters in connection with the issuance of the Company's
Capital Stock offered hereby have been passed upon by Naomi C. Dallob, 2600
Chemed Center, 255 East 5th Street, Cincinnati, Ohio 45202. Ms. Dallob is Vice
President and Secretary, and a stockholder of the Company.
Item 6. Indemnification of Directors and Officers
The Certificate of Incorporation and By-laws of the Company, and
separate Indemnity Agreements, provide for the indemnification of each director
and officer of the Company in connection with any claim, action, suit or
proceeding brought or threatened by reason of his position with the Company. In
addition, the General Corporation Law of the
II-1
State of Delaware ("Delaware Law") permits the Company to indemnify its
directors, officers and others against judgments, fines, amounts paid in
settlement and attorneys' fees resulting from various types of legal actions or
proceedings if the actions of the party being indemnified meet the standards of
conduct specified in the Delaware Law. The Company also maintains directors and
officers liability insurance for the benefit of its directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or controlling
persons of the Company pursuant to the provisions referred to above or
otherwise, the Company 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.
Item 7. Exemption from Registration Claimed
N/A
Item 8. Exhibits.
Page Number or
Incorporation
by Reference
Exhibit File Number and
Number Filing Date
------ -----------
4.1 Certificate of Incorporation Form S-3
Reg. No. 33-44177
11/26/91
4.2 Amendment to Certificate E-1
of Incorporation
4.3 2004 Stock Incentive Plan 2004 Proxy Statement
4/05/04
4.4 Form of Option under 2004 E-2 through E-4
Stock Incentive Plan
5 Opinion and Consent of Counsel E-5
23.1 Consent of Independent Registered E-6
Public Accounting Firm
23.2 Consent of Independent E-7
Auditors
24 Powers of Attorney E-8 through E-16
Item 9. Undertakings.
The undersigned registrant hereby undertakes (1) to file, during any
period in which it offers or sells securities, a post-effective amendment to
this registration statement to include
II-2
any additional or changed material information on the plan of distribution; (2)
for determining liability under the Securities Act of 1933, it will treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering; and (3) it will file a post-effective amendment to remove from
registration any of the securities which remain unsold at the end of the
offering.
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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 ("Act") may be permitted to directors, officers or
controlling persons of the Company pursuant to the provisions referred to above
or otherwise, the Company 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
Company of expenses incurred or paid in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
against the Company in connection with the securities being registered, the
Company 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-3
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 Cincinnati, State of Ohio, on September 1, 2004.
CHEMED CORPORATION
By: /s/ Kevin J. McNamara
---------------------------------------
Kevin J. McNamara
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Kevin J. McNamara President and Chief Executive September 1, 2004
--------------------- Officer
Kevin J. McNamara (Principal Executive Officer)
/s/ David P. Williams Vice President September 1, 2004
---------------------- and Chief Financial Officer
David P. Williams (Principal Financial Officer)
/s/ Arthur V. Tucker Vice President and Controller September 1, 2004
-------------------- (Principal Accounting Officer)
Arthur V. Tucker
Edward L. Hutton* Sandra E. Laney*
Donald Breen, Jr.* Timothy S. O'Toole*
Charles H. Erhart, Jr.* Donald E. Saunders*
Joel F. Gemunder* George J. Walsh III*
Patrick P. Grace Frank E. Wood* DIRECTORS
Thomas C. Hutton
/s/ Naomi C. Dallob September 1, 2004
-------------------
Naomi C. Dallob
Vice President and Secretary
-------------
* Naomi C. Dallob signing her name hereto signs this document on behalf of each
of the persons indicated above pursuant to powers of attorney duly executed,
filed with the Securities and Exchange Commission.
/s/ Naomi C. Dallob
-----------------------------------
Naomi C. Dallob, Attorney-in-Fact
INDEX TO EXHIBITS
Page Number
or
Incorporation by Reference
--------------------------------------------
File Number
Exhibit and Previous
Number Filing Date Exhibit
------ ----------- -------
4.1 Certificate of Incorporation Form S-3 4.1
Reg. No.
33-44177
11/26/91
4.2 Amendment to Certificate E-1
of Incorporation
4.3 2004 Stock Incentive Plan 2004 Proxy A
Statement
4/05/04
4.4 Form of Option Under E-2 through E-4
2004 Stock Incentive Plan
5 Opinion and Consent of E-5
Counsel
23.1 Consent of Independent E-6
Registered Public Accounting
Firm
23.2 Consent of Independent E-7
Auditors
24 Powers of Attorney E-8 through E-16