As filed with the Securities and Exchange Commission on October 17, 2003
Registration No. 333-
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
INVACARE CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Ohio 95-2680965
------------------------------ -----------------------------------
(State or Other Jurisdiction of I.R.S. Employer Identification No.)
Incorporation or Organization)
Invacare Corporation
One Invacare Way
Elyria, Ohio 44036
(Address of Principal Executive Offices, including Zip Code)
INVACARE CORPORATION 2003 PERFORMANCE PLAN
(Full Title of the Plan)
----------------
With a copy to:
Gregory C. Thompson ---------------
Senior Vice President and Douglas A. Neary, Esq.
Chief Financial Officer Calfee, Halter & Griswold LLP
Invacare Corporation 1400 McDonald Investment Center
One Invacare Way 800 Superior Avenue
Elyria, Ohio 44036 Cleveland, Ohio 44114
(440) 329-6000 (216) 622-8200
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
----------------
CALCULATION OF REGISTRATION FEE
----------------------------------------------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
to be Price offering registration
Title of securities to be registered registered (2) per share (1) Price (1) Fee
----------------------------------------------------------------------------------------------------------------------
Common Shares, without par value (3) 2,000,000 $39.76 $79,520,000 $6,433.17
----------------------------------------------------------------------------------------------------------------------
(1) Estimated in accordance with Rule 457(c) and (h) under the Securities Act
of 1933, as amended (the "Securities Act"), solely for the purpose of
calculating the registration fee and based upon the average of the high and
low sales price of the common shares without par value of Invacare
Corporation (the "Common Shares") reported on the New York Stock Exchange
on October 10, 2003.
(2) Pursuant to Rule 416 under the Securities Act, this registration statement
also covers such additional Common Shares which may be issued or become
issuable under the terms of the Invacare Corporation 2003 Performance Plan
(the "Plan"), in order to prevent dilution resulting from any stock split,
stock dividend or similar transaction.
(3) One right for each Common Share (a "Right") will also be issued with
respect to each Common Share. The terms of the Rights are described in the
registrant's Registration Statement on Form 8-A, dated July 18, 1995, as
the same may be amended or supplemented from time to time.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
As specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act") documents containing the information specified in
Part I of this Registration Statement will be sent or given to each person who
holds outstanding options or other securities issued under the Company's
employee benefit plan identified on the cover of this Registration Statement.
These documents, and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II below, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents of the Company previously filed with the
Securities and Exchange Commission (the "Commission"), are incorporated herein
by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 2002;
2. The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 2003, and June 30, 2003;
3. The Company's Current Reports on Form 8-K filed on April 17, 2003,
July 17, 2003, October 1, 2003 and October 16, 2003;
4. The description of the Common Shares contained in the Company's
Registration Statement on Form 8-A, dated October 21, 1986
(Reg. No. 0-12938) and any amendments and reports filed for the
purpose of updating that description; and
5. The description of the Rights contained in the Company's
Registration Statement on Form 8-A, dated July 18, 1995, and
any amendments or reports filed for the purpose of updating that
description;
other than the portions of such documents that, by statute, by designation in
such document or otherwise, are not deemed to be filed with the Commission or
are not required to be incorporated herein by reference.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") after the date of this Registration Statement, prior to the
filing of a post-effective amendment that indicates that all securities offered
have been sold or that deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in the Registration Statement and to
be a part hereof from the date of filing of such documents, other than the
portions of such documents that by statute, by designation in such document or
otherwise, are not deemed to be filed with the Commission or are not required to
be incorporated herein by reference.
II-1
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference in this Registration Statement 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.
A description of the Common Shares and the Rights to purchase Common
Shares is incorporated herein by reference. See Item 3 above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1701.13(E) of the Ohio Revised Code sets forth the conditions
and limitations governing the indemnification of officers, directors and other
persons. Section 1701.13(E) provides that a corporation shall have the power to
indemnify any person who was or is a party or threatened to be made a party to
any threatened, pending or contemplated action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation in a similar capacity with another corporation or
other entity, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement incurred in connection therewith if he or she acted
in good faith and in a manner that he or she reasonably believed to be in the
best interests of the corporation and, with respect to a criminal proceeding,
had no reasonable cause to believe that his or her conduct was unlawful. With
respect to a suit by or in the right of the corporation, indemnity may be
provided to the foregoing persons under Section 1701.13(E) on a basis similar to
that set forth above, except that no indemnity may be provided in respect of any
claim, issue or matter as to which such person has been adjudged to be liable to
the corporation unless and to the extent that the Court of Common Pleas or the
court in which such action, suit or proceeding was brought determines that
despite the adjudication of liability but in view of all the circumstances of
the case such person is entitled to indemnity for such expenses as the court
deems proper. Moreover, Section 1701.13(E) provides for mandatory
indemnification of a director, officer, employee or agent of the corporation to
the extent that such person has been successful in defense of any such action,
suit or proceeding and provides that a corporation shall pay the expenses of an
officer or director in defending an action, suit or proceeding upon receipt of
an undertaking to repay such amounts if it is ultimately determined that such
person is not entitled to be indemnified. Section 1701.13(E) also provides the
registrant may indemnify any director or officer or any former director or
officer of the registrant against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement, actually and reasonably
incurred by him or her by reason of the fact that he or she is or was such
director or officer in connection with any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative. Section 1701.13(E) establishes provisions for determining whether
a given person is entitled to indemnification, and also provides that the
indemnification provided by or granted under Section 1701.13(E) is not exclusive
of any rights to indemnity or advancement of expenses
II-2
to which such person may be entitled under any articles, regulations, agreement,
vote of shareholders or disinterested directors or otherwise.
Article V of the registrant's Code of Regulations, as amended, requires
the registrant to indemnify any officer, director or other person, to the
fullest extent provided by, or permissible under, Section 1701.13(E).
The registrant has entered into indemnification agreements (the
"Indemnification Agreements") with the current directors and certain executive
officers of the registrant and expects to enter into similar agreements with its
director and certain executive officers elected or appointed in the future at
the time of their election or appointment. Pursuant to the Indemnification
Agreements, the registrant will indemnify a director or executive officer of the
registrant (the "Indemnitee") if the Indemnitee is a party to or otherwise
involved in any legal proceeding by reason of the fact that the Indemnitee is or
was a director or executive officer of the registrant, or is or was serving at
the request of the registrant in certain capacities with another entity, against
all expenses, judgments, settlements, fines and penalties, actually and
reasonably incurred by the Indemnitee, in connection with the defense or
settlement of such proceeding. Indemnification is only available if the
Indemnitee acted in good faith and in a manner which he or she reasonably
believed to be in, or not opposed to, the best interests of the registrant. The
same coverage is provided whether or not the suit or proceeding is a derivative
action. Derivative actions may be defined as actions brought by one or more
shareholders of a corporation to enforce a corporate right or to prevent or
remedy a wrong to the corporation in cases where the corporation, because it is
controlled by the wrongdoers or for other reasons, fails or refuses to take
appropriate action for its own protection. The Indemnification Agreements
mandate advancement of expenses to the Indemnitee if the Indemnitee provides the
registrant with a written promise to repay the advanced amounts in the event
that it is determined that the conduct of the Indemnitee has not met the
applicable standard of conduct. In addition, the Indemnification Agreements
provide various procedures and presumptions in favor of the Indemnitee's right
to receive indemnification under the Indemnity Agreement.
Under the registrant's Executive Liability and Defense Coverage
Insurance Policy, each director and each executive officer of the registrant are
insured against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index at Page E-1 of this Registration Statement.
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, unless the
information required to be included in such
II-3
post-effective amendment is contained in periodic
reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of
1934 and incorporated herein by reference.
(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 the 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 end 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 registration statement is on Form S-3, Form S-8 or Form
F-3, and 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 Securities and Exchange Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
registrant's annual report pursuant to Section 13(a) or 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 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 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
Securities Act and is, therefore, unenforceable. In the event a claim for
indemnification against such liabilities (other
II-4
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 against the registrant 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 Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-5
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 Elyria, State of Ohio, on this 17th day of October,
2003.
INVACARE CORPORATION
By: /s/ A. Malachi Mixon, III
-------------------------------------
A. Malachi Mixon, III
Chairman of the Board
and Chief Executive Officer
(Principal 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 indicated on October 17, 2003.
SIGNATURE TITLE
--------- -----
/s/ A. Malachi Mixon, III Chairman of the Board
----------------------------------------------------- and Chief Executive Officer
A. Malachi Mixon, III (Principal Executive Officer)
/s/ Gregory C. Thompson Senior Vice President
----------------------------------------------------- and Chief Financial Officer
Gregory C. Thompson (Principal Financial and Accounting Officer)
/s/ Gerald B. Blouch Director
-----------------------------------------------------
Gerald B. Blouch
/s/ Joseph B. Richey, II Director
-----------------------------------------------------
Joseph B. Richey, II
/s/ James C. Boland Director
-----------------------------------------------------
James C. Boland
/s/ Michael F. Delaney Director
-----------------------------------------------------
Michael F. Delaney
II-6
/s/ Whitney Evans Director
-----------------------------------------------------
Whitney Evans
/s/ C. Martin Harris, M.D. Director
-----------------------------------------------------
C. Martin Harris, M.D.
/s/ Bernadine P. Healy, M.D. Director
-----------------------------------------------------
Bernadine P. Healy, M.D.
/s/ John R. Kasich Director
-----------------------------------------------------
John R. Kasich
/s/ Dan T. Moore, III Director
-----------------------------------------------------
Dan T. Moore, III
/s/ William M. Weber Director
-----------------------------------------------------
William M. Weber
II-7
INVACARE CORPORATION
EXHIBIT INDEX
Exhibit Exhibit
Number Description
------- -----------
4.1 Amended and Restated Articles of Incorporation of the Company, as amended. (A)
4.2 Code of Regulations of the Company, as amended through May 22, 1996. (B)
4.3 Specimen Share Certificate for Common Shares, as revised. (C)
4.4 Rights Agreement between the Company and the Rights Agent, dated July 7, 1995. (D)
4.5 Invacare Corporation 2003 Performance Plan. (x)
5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity of the Common Shares. (x)
23.1 Consent of Ernst & Young LLP. (x)
23.2 Consent of Calfee, Halter & Griswold LLP (included in Exhibit 5.1 of this Registration
Statement).
------------------
(A) Incorporated herein by reference to the appropriate exhibit to the
Company's Definitive Proxy Statement used in connection with the Annual
Meeting of Shareholders held on May 22, 1996.
(B) Incorporated herein by reference to the appropriate exhibit to the
Company's quarterly report on Form 10-Q for the quarter ended September
30, 1996.
(C) Incorporated herein by reference to the appropriate exhibit to the
Company's Registration Statement on Form S-3 (Reg. No. 33-40168),
effective as of April 26, 1991.
(D) Incorporated herein by reference to the appropriate exhibit to the
Company's registration statement on Form 8-A, dated July 18, 1995.
(x) Filed herewith.
E-1