As filed with the Securities and Exchange Commission on November 17, 2014
Registration No. 333-196804
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1 TO
Form S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
KINDRED HEALTHCARE, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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61-1323993 |
(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification No.) |
680 South Fourth Street
Louisville, Kentucky 40202
(502) 596-7300
(Address,
including zip code, and telephone number, including area code, of registrants principal executive offices)
Joseph L.
Landenwich, Esq.
Co-General Counsel and Corporate Secretary
Kindred Healthcare, Inc.
680 South Fourth Street
Louisville, Kentucky 40202
(502) 596-7300
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Nicolas Grabar, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New
York, New York 10006
(212) 225-2000
Approximate date
of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only
securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer, accelerated filer, and smaller reporting company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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CALCULATION OF REGISTRATION FEE
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Title of each class of securities to be registered |
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Amount to be registered/Proposed maximum offering price per unit/ Proposed maximum aggregate offering price(1) |
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Amount of registration fee(2) |
Common Stock, $0.25 par value per share (3)(4) |
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Preferred Stock, $0.25 par value per share (3) |
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Depositary Shares (3) |
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Purchase Contracts (3) |
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Units (3) |
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(1) |
An indeterminate aggregate initial offering price and number or amount of the securities is being registered as may periodically be offered at indeterminate prices. |
(2) |
In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the entire registration fee. |
(3) |
Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities. |
(4) |
An indeterminate number of shares of common stock may be issued from time to time upon exercise, conversion or exchange of other securities. |
EXPLANATORY NOTE
This Post-Effective
Amendment No. 1 relates to the Automatic Shelf Registration Statement on Form S-3 (File No. 333-196804) of Kindred Healthcare, Inc., which was filed with the Securities and Exchange Commission (the SEC) and became effective on
June 16, 2014. It is being filed with the SEC in order to register, in addition to the class of securities originally registered, additional classes of securities and to file or incorporate by reference additional related exhibits. The existing
base prospectus, dated June 16, 2014 that currently forms part of the registration statement, is being replaced in its entirety by the base prospectus filed with this Post-Effective Amendment No. 1. This Post-Effective Amendment No. 1
will become effective immediately upon filing with the SEC.
PROSPECTUS
Kindred Healthcare, Inc.
Common Stock
Preferred
Stock
Depositary Shares
Purchase Contracts
Units
We or selling stockholders may offer and sell from time to time, together or separately, shares of our common stock, par value $0.25 per
share, shares of our preferred stock, par value $0.25 per share, depositary shares, purchase contracts and units, in amounts, at prices and on other terms to be determined at the time of the offering and to be described in an accompanying prospectus
supplement.
In the case of an offering by a selling stockholder, the applicable prospectus supplement will include the identity of, and
specific information required with respect to, any selling stockholder. Any prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and each related prospectus supplement
carefully before you invest. This prospectus may not be used to sell these securities unless accompanied by a prospectus supplement.
We
or the selling stockholders may offer and sell these securities through one or more underwriters, dealers or agents, through underwriting syndicates managed or co-managed by one or more underwriters, or directly to purchasers, on a continuous or
delayed basis. We provide more information about how the securities may be offered and sold in the section entitled Plan of Distribution beginning on page 5. The prospectus supplement for each offering of securities will describe in
detail the plan of distribution for that offering.
Our common stock is listed on the New York Stock Exchange under the symbol
KND. On November 14, 2014, the last sale price of our common stock as reported on the New York Stock Exchange was $19.92 per share.
INVESTING IN THE OFFERED SECURITIES INVOLVES RISKS. YOU SHOULD READ THE RISK FACTORS
SECTION ON PAGE 1 OF THIS PROSPECTUS AND CAREFULLY CONSIDER THE DISCUSSION OF RISKS AND UNCERTAINTIES DESCRIBED UNDER THE HEADING RISK FACTORS IN ANY APPLICABLE PROSPECTUS SUPPLEMENT AND IN THE DOCUMENTS WE INCORPORATE BY REFERENCE.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities
or passed upon the accuracy or adequacy of this prospectus or any applicable prospectus supplement. Any representation to the contrary is a criminal offense.
Prospectus
dated November 17, 2014
TABLE OF CONTENTS
We and any selling stockholders are responsible for the information contained and incorporated by reference
in this prospectus, any prospectus supplement and any free writing prospectus prepared by us or on behalf of us. Neither we nor any selling stockholders have authorized anyone to give you any other information, and we or any selling stockholders
take no responsibility for any other information that others may give you. We and any selling stockholders are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted. You should not assume that the
information contained or incorporated by reference in this prospectus or any prospectus supplement is accurate as of any date other than the date of the document containing the information.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the SEC utilizing an automatic shelf registration process. Under this
shelf process, we or any selling stockholders may periodically sell any combination of the securities described in this prospectus in one or more offerings. This prospectus provides a general description of our securities that we or any selling
stockholders may offer. Each time we or any selling stockholders offer securities, we or any selling stockholders will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement
may also add, update or change information, including information about us, contained in this prospectus. Therefore, before making your investment decision, you should carefully read both this prospectus and any prospectus supplement together with
the documents referred to in Where You Can Find More Information.
References to we, us,
our, the Company and Kindred are references to Kindred Healthcare, Inc. and its consolidated subsidiaries, unless it is clear from the context that we mean only Kindred Healthcare, Inc.
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any prospectus supplement and the documents incorporated by reference contain statements about future events and
expectations, or forward-looking statements, all of which are inherently uncertain. All statements regarding our expected future financial position, results of operations, cash flows, dividends, financing plans, business strategy, budgets, capital
expenditures, competitive positions, growth
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opportunities, plans and objectives of management and statements containing the words such as anticipate, approximate, believe, plan,
estimate, expect, project, could, would, should, will, intend, may, potential, upside and other similar expressions,
are forward-looking statements. Such forward-looking statements are inherently uncertain, and stockholders and other potential investors must recognize that actual results may differ materially from our expectations as a result of a variety of
factors. Such forward-looking statements are based upon managements current expectations and include known and unknown risks, uncertainties and other factors, many of which we are unable to predict or control, that may cause our actual results
or performance to differ materially from any future results or performance expressed or implied by such forward-looking statements. These statements involve risks, uncertainties and other factors detailed from time to time in our filings with the
SEC.
We caution you that any forward-looking statements made by us are not guarantees of future performance. You should keep in mind that
any forward-looking statement we make in this prospectus, any prospectus supplement, the documents incorporated by reference or elsewhere speaks only as of the date on which we make it. New risks and uncertainties arise from time to time, and it is
impossible for us to predict these events or how they may affect us. In any event, these and other important factors, including those set forth under the caption Risk Factors in a prospectus supplement and the documents incorporated by
reference, may cause actual results to differ materially from those indicated by our forward-looking statements. We have no duty, and do not intend, to update or revise the forward-looking statements we make in this prospectus, any prospectus
supplement, the documents incorporated by reference or elsewhere, except as may be required by law. In light of these risks and uncertainties, you should keep in mind that the future events or circumstances described in any forward-looking statement
we make in this prospectus, any prospectus supplement, the documents incorporated by reference or elsewhere might not occur.
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KINDRED HEALTHCARE, INC.
Kindred Healthcare, Inc. is a healthcare services company that through its subsidiaries operates transitional care (TC) hospitals,
inpatient rehabilitation hospitals (IRFs), nursing centers, assisted living facilities, a contract rehabilitation services business and a home health and hospice business across the United States.
We are organized into four operating divisions: the hospital division, the nursing center division, the rehabilitation division and the care
management division.
The hospital division operates TC hospitals and IRFs. The nursing center division operates nursing centers and
assisted living facilities. The rehabilitation division provides rehabilitation services primarily in hospitals and long-term care settings. The care management division primarily provides home health, hospice and private duty services to patients
in a variety of settings, including homes, nursing centers and other residential settings. We believe that the independent focus of each division on the unique aspects of its business enhances its ability to improve the quality of its operations and
achieve operating efficiencies.
Based upon the authoritative accounting guidance for business segments, our operating divisions represent
five reportable operating segments: (1) hospitals, (2) nursing centers, (3) skilled nursing rehabilitation services (SRS), (4) hospital rehabilitation services (HRS) and (5) home health and hospice
services. The SRS and HRS operating segments are both contained within the rehabilitation division, while home health and hospice services are contained within the care management division.
All financial and statistical information presented or incorporated by reference in this registration statement reflects the continuing
operations of our businesses for all periods presented unless otherwise indicated.
Kindred Healthcare, Inc. is headquartered in
Louisville, Kentucky and was incorporated in 1998. Our principal office is located at 680 South Fourth Street, Louisville, Kentucky 40202, and our telephone number is (502) 596-7300. Our website is www.kindredhealthcare.com. Our
website is included in this prospectus and any applicable prospectus supplement as an inactive textual reference only. Except for the documents specifically incorporated by reference into this prospectus, information contained on our website is not
incorporated by reference into this prospectus and any applicable prospectus supplement and should not be considered to be a part of this prospectus or any applicable prospectus supplement.
RISK FACTORS
Investing in our securities involves risks. Before deciding to invest in the securities, you should carefully consider the discussion of risks
and uncertainties under the heading Risk Factors contained in any applicable prospectus supplement and in the documents that are incorporated by reference in this prospectus. See the section entitled Where You Can Find More
Information on page 8.
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USE OF PROCEEDS
Except as otherwise set forth in a prospectus supplement, we intend to use the net proceeds from any sale of our securities by this prospectus
for our general corporate purposes. The net proceeds may be invested temporarily in short-term marketable securities or applied to repay short-term debt.
Unless otherwise set forth in a prospectus supplement, we will not receive any proceeds from any sale of our securities by a selling
stockholder.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERENCE DIVIDENDS
The following table sets forth our ratio of earnings to combined fixed charges and preference dividends for each of the periods indicated. You
should read this table in conjunction with the consolidated financial statements and notes incorporated by reference in this prospectus.
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Year Ended December 31, |
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(dollars in thousands) |
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Nine Months Ended September 30, 2014 |
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2013 |
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2012 |
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2011 |
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2010 |
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Ratio of Earnings to Combined Fixed Charges and Preference Dividends(1)(2)(3) |
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1.05 |
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1.19 |
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1.30 |
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(1) |
For the purpose of computing these ratios, earnings consists of consolidated pretax income from continuing operations before adjustment for noncontrolling interests in consolidated subsidiaries and income or
loss from equity investees, plus fixed charges, distributed income of equity investees and amortization of capitalized interest, less interest capitalized; fixed charges consists of interest expense from continuing and discontinued
operations, amortized debt discounts and fees, interest capitalized related to indebtedness and an estimated interest component of rental expense; preference dividend is the amount of pre-tax earnings that is required to pay the
dividends on outstanding preference securities. Kindred had no preferred stock outstanding during the periods indicated. |
(2) |
Kindred had no preferred stock outstanding during the periods indicated; therefore, the ratio of earnings to combined fixed charges and preference dividends is the same as the ratio of earnings to fixed charges.
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For the years ended December 31, 2013, 2012 and 2011, there was a deficiency of earnings to cover fixed charges of $53,054, $17,228 and $80,877, respectively. |
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DESCRIPTION OF COMMON STOCK
The description below summarizes the general terms of our common stock. This section is a summary, and it does not describe every aspect of
our common stock. This summary is subject to and qualified in its entirety by reference to the provisions of our Amended and Restated Certificate of Incorporation (the Certificate of Incorporation) and our Amended and Restated Bylaws
(the By-Laws), each as may be amended from time to time.
Authorized Shares
The Company is authorized to issue a total of 175,000,000 shares of common stock with 25 cent ($0.25) par value per share. As of
October 31, 2014, there were 64,623,953 shares of common stock outstanding. The issued and outstanding shares of common stock are, and any shares of common stock issuable under the stock option plans or upon the exercise of any warrants for
common stock will be, duly authorized, validly issued, fully paid and non-assessable.
Dividends
Holders of common stock are entitled to receive ratably such dividends as may be declared by the Companys board of directors out of funds
legally available therefor. We are subject to certain limitations on the declaration and payment of dividends, other than stock dividends, pursuant to the terms of our outstanding indebtedness.
Voting
Holders of common stock are
entitled to one vote per share for each share held of record on all matters submitted to a vote of stockholders.
Rights Upon Liquidation, Dissolution
or Winding Up
In the event of a liquidation, dissolution or winding up of the Company, holders of common stock would have the right to
a ratable portion of assets remaining after payment of liabilities and subject to the prior rights of any holders of preferred stock then outstanding. Holders of common stock will have no preemptive rights.
Listing
The Companys common stock
is quoted on the New York Stock Exchange under the ticker symbol KND.
Transfer Agent and Registrar
The registrar and transfer agent for the common stock is Computershare, 250 Royall Street, Canton, Massachusetts 02021, (800) 736-3001.
Certain Restrictions
In order to
help ensure that Ventas, Inc. (Ventas), a former affiliate of the Company, continues to meet the requirements for treatment as a real estate investment trust, the Certificate of Incorporation contains a provision prohibiting Tenet
Healthcare Corporation and its successors (Tenet) from beneficially owning, directly or indirectly (including by application of certain attribution rules under the Internal Revenue Code), shares of our common stock in excess of the
existing holder limit set forth in the Certificate of Incorporation for so long as Tenet remains a significant shareholder in Ventas. Any shares of our common stock beneficially owned by Tenet in excess of such existing holder limit, including
shares beneficially owned by persons that are or become related
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to Tenet under the attribution rules, will be designated as excess stock and treated as described in the Certificate of Incorporation. The certificates evidencing our common stock
contain a legend referencing the above restriction. In addition, if we engage in an Accretive Transaction (as defined in the Certificate of Incorporation), we will purchase from Ventas such number of shares as are necessary to prevent
Ventas from beneficially owning in excess of 9.9% of the Company after giving effect to such Accretive Transaction.
The Certificate of
Incorporation also states that we may not issue nonvoting equity securities to the extent prohibited by Section 1123(6)(a) of Chapter 11 of Title 11 of the United States Code.
Certain Statutory Provisions
In the
Certificate of Incorporation, the Company has elected not to be governed by Section 203 of the Delaware General Corporation Law (DGCL). Section 203 of the DGCL prohibits a publicly held Delaware corporation from engaging in a
business combination transaction with an interested stockholder (a stockholder who purchases more than 15% of our common stock) for a period of three years after the interested stockholder became such unless the transaction fits within an applicable
exemption, such as board approval of the business combination or the transaction that resulted in such stockholder becoming an interested stockholder. These provisions would apply even if the business combination could be considered beneficial by
some stockholders. By opting out of Section 203 of the DGCL, a stockholder that becomes an interested stockholder will be able to engage in a business combination transaction with us without prior board approval.
DESCRIPTION OF PREFERRED STOCK
The description below summarizes the general terms of our preferred stock. This section is a summary, and it does not describe every aspect of
our preferred stock. This summary is subject to and qualified in its entirety by reference to the provisions of our Certificate of Incorporation and our By-Laws, each as may be amended from time to time.
The Certificate of Incorporation authorizes our board of directors to issue preferred stock in one or more series and to establish the
designations, powers, preferences and rights and the qualifications, limitations and restrictions of any series with respect to the number of shares included in such series, the rate and nature of dividends, the price and terms and conditions on
which shares may be redeemed, the terms and conditions for conversion or exchange into any other class or series of stock, voting rights and other terms. We may issue, without the approval of holders of common stock, preferred stock which has
voting, dividend or liquidation rights superior to the common stock and which may adversely affect the rights of holders of common stock. The issuance of preferred stock could, among other things, adversely affect the voting power of holders of
common stock and could have the effect of delaying, deferring or preventing a change in control of us. We are subject to certain limitations on the issuance of preferred stock pursuant to the terms of our outstanding indebtedness.
The Company is authorized to issue a total of 1,000,000 shares of preferred stock with 25 cent ($0.25) par value per share. We have no
shares of preferred stock outstanding as of the date of this prospectus.
DESCRIPTION OF DEPOSITARY SHARES
The Company may issue fractional interests in shares of common or preferred stock, rather than shares of common or preferred stock,
with those rights and subject to the terms and conditions that we may specify in a related prospectus supplement. If we do so, we will provide for a depositary (either a bank or trust company depositary that has its principal office in the United
States) to issue receipts for depositary shares, each of which will represent a fractional interest in a share of common or preferred stock, as applicable. The shares of common
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or preferred stock underlying the depositary shares will be deposited under a deposit agreement between us and the depositary. The prospectus supplement will include the name and address of the
depositary.
DESCRIPTION OF PURCHASE CONTRACTS
The Company may issue purchase contracts, including contracts obligating holders to purchase from us, and us to sell to the holders, a
specified or varying number of shares of common stock, preferred stock or depositary shares at a future date or dates. Alternatively, the purchase contracts may obligate us to purchase from holders, and obligate holders to sell to us, a specified or
varying number of shares of common stock, preferred stock or depositary shares. The consideration per share of common stock, preferred stock or per depositary share may be fixed at the time the purchase contracts are issued or may be determined by a
specific reference to a formula set forth in the purchase contracts. The purchase contracts may provide for settlement by delivery of shares of the underlying security, or they may provide for settlement by reference or linkage to the value,
performance or trading price of the underlying security. The purchase contracts may be issued separately or as part of purchase units consisting of a purchase contract and an underlying security, which may include debt obligations of third parties,
such as U.S. Treasury securities, that is pledged by the holder of a purchase contract to secure its obligations under the purchase contract. The purchase contracts may require us to make periodic payments to the holders thereof or vice versa, and
these payments may be unsecured or prefunded on some basis and may be paid on a current or on a deferred basis. The purchase contracts may require holders to secure their obligations thereunder in a specified manner and may provide for the
prepayment of all or part of the consideration payable by holders in connection with the purchase of the underlying security or other property pursuant to the purchase contracts.
The securities related to the purchase contracts may be pledged to a collateral agent for our benefit pursuant to a pledge agreement to secure
the obligations of holders of purchase contracts to purchase the underlying security or property under the related purchase contracts. The rights of holders of purchase contracts to the related pledged securities will be subject to our security
interest therein created by the pledge agreement. No holder of purchase contracts will be permitted to withdraw the pledged securities related to such purchase contracts from the pledge arrangement.
DESCRIPTION OF UNITS
The Company may issue units consisting of one or more purchase contracts, shares of preferred stock, shares of common stock or any combination
of such of our securities, as specified in a related prospectus supplement.
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PLAN OF DISTRIBUTION
We or the selling stockholders may offer and sell from time to time, together or separately, the securities covered by this prospectus in one
or more or any combination of the following transactions:
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on the New York Stock Exchange, in the over-the-counter market or on any other national securities exchange on which our securities are listed or traded; |
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in privately negotiated transactions; |
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in underwritten transactions; |
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in a block trade in which a broker-dealer will attempt to sell the offered securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
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through purchases by a broker-dealer as principal and resale by the broker-dealer for its account pursuant to this prospectus; and |
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through any other method permitted by applicable law. |
We or the selling stockholders may sell
our securities at prices then prevailing or related to the then current market price or at negotiated prices. The offering price of our securities from time to time will be determined by us or the selling stockholders, as applicable, and, at the
time of the determination, may be higher or lower than the market price of our securities on the New York Stock Exchange or any other exchange or market.
Our securities may be offered to the public, from time to time, through broker-dealers acting as agent or principal, including through
underwriting syndicates represented by one or more managing underwriters or directly by one or more of such firms in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the
time of sale. The obligations of the underwriters to purchase the offered securities will be subject to the conditions set forth in the applicable underwriting agreement. Any public offering price and any discounts or concessions allowed or
reallowed or paid by underwriters or dealers to other dealers may be changed from time to time. The underwriters will be obligated to purchase all of the offered securities if they purchase any of the offered securities.
In connection with an underwritten offering, underwriters or agents may receive compensation in the form of discounts, concessions or
commissions from us or the selling stockholders, as applicable, or from purchasers of the offered securities for whom they may act as agents. In addition, underwriters may sell our securities to or through dealers, and those dealers may receive
compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. The selling stockholders and any underwriters, dealers or agents participating in a
distribution of our securities may be deemed to be underwriters within the meaning of the Securities Act of 1933, as amended (the Securities Act), and any profit on the sale of the securities by the selling stockholders and
any commissions received by broker-dealers may be deemed to be underwriting commissions under the Securities Act.
We and the selling
stockholders each may agree to indemnify an underwriter, broker-dealer or agent against certain liabilities related to the selling of our securities, including liabilities arising under the Securities Act.
At any time a particular offer of securities covered by this prospectus is made, a revised prospectus or prospectus supplement, if required,
will set forth the aggregate amount of securities covered by this prospectus being offered and the terms of the offering, including the name or names of any underwriters, dealers, brokers or agents. In addition, to the extent required, any
discounts, commissions, concessions and other items constituting underwriters or agents compensation, as well as any discounts, commissions or concessions allowed or reallowed or paid to dealers, will be set forth in such revised
prospectus or prospectus supplement. Any such required prospectus or prospectus supplement, and, if necessary, a post-effective amendment to the registration statement of which this prospectus is a part, will be filed with the SEC to reflect the
disclosure of additional information with respect to the distribution of our securities covered by this prospectus.
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To facilitate the offering of the securities covered by this prospectus, certain persons
participating in the offering may engage in transactions that stabilize, maintain or otherwise affect the price of our securities. This may include over-allotments or short sales of our securities, which involve the sale by persons participating in
the offering of more securities than we or the selling stockholders sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment
option, if any. In addition, these persons may stabilize or maintain the price of our securities by bidding for or purchasing our securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating
in the offering may be reclaimed if our securities sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of our securities at a level above that
which might otherwise prevail in the open market. These transactions may be discontinued at any time.
In the ordinary course of their
business activities, any underwriter, broker-dealer or agent and their respective affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments
(including bank loans) for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities and instruments. Such investment and securities activities may involve our securities and other
instruments. Any underwriter, broker-dealer or agent and their respective affiliates may also engage in transactions with or perform services for us or provide other types of financing to us in the ordinary course of their business.
To the extent required, this prospectus may be amended and/or supplemented from time to time to describe a specific plan of distribution.
To comply with applicable state securities laws, our securities covered by this prospectus will be sold, if necessary, in such jurisdictions
only through registered or licensed brokers or dealers. In addition, our securities may not be sold in some states absent registration or pursuant to an exemption from applicable state securities laws.
VALIDITY OF THE SECURITIES
The validity of the securities described in this prospectus will be passed upon for Kindred Healthcare, Inc. by Cleary Gottlieb
Steen & Hamilton LLP, New York, New York. The validity of the securities described in this prospectus will be passed upon for any underwriters or agents, as the case may be, by counsel identified in the prospectus supplement with respect to
any offering.
EXPERTS
The financial statements incorporated in this prospectus by reference to Kindred Healthcare, Inc.s Current Report on Form 8-K dated
November 14, 2014 and the financial statement schedule and managements assessment of the effectiveness of internal control over financial reporting (which is included in Managements Report on Internal Control over Financial
Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K of Kindred Healthcare, Inc. for the year ended December 31, 2013 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 RehabCare Group, Inc. as of December 31, 2010 and 2009, and for each of the years in the three-year period ended December 31, 2010, incorporated in this prospectus by reference to Kindred Healthcare,
Inc.s Current Report on Form 8-K filed on October 4, 2011, have been incorporated by reference in reliance upon the report of KPMG LLP, independent registered public accounting firm, which report appears in Kindred Healthcare, Inc.s
Current Report on Form 8-K dated October 4, 2011, incorporated by reference herein, and upon the authority of said firm as experts in auditing and accounting.
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The audit report covering the December 31, 2010 consolidated financial statements of
RehabCare Group, Inc. refers to the adoption of FASB Financial Accounting Standard No. 141(R), Business Combinations (included in FASB ASC Topic 805, Business Combinations), as of January 1, 2009.
The financial statements and managements assessment of the effectiveness of internal control over financial reporting (which is included
in Managements Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to Gentiva Health Services, Inc.s Annual Report on Form 10-K/A for the year
ended December 31, 2013 have been so incorporated in reliance on the report (which contain explanatory paragraphs relating to the Companys restatement of its financial statements as described in Note 2 to the financial statements, an
adverse opinion on the effectiveness of internal control over financial reporting and an explanatory paragraph on the effectiveness of internal control over financial reporting due to the exclusion of certain elements of the internal control over
financial reporting of Harden Healthcare Holdings, Inc. which the registrant acquired as of December 31, 2013) of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in
auditing and accounting.
The combined financial statements of Harden Healthcare Holdings, Inc. Net Assets Sold (Certain Assets,
Liabilities and Operations Related to the Harden Home Health and Hospice Divisions) incorporated by reference in Gentiva Health Services, Inc.s Current Report on Form 8-K/A (Amendment No. 1)
(Exhibits 99.1 and 99.2 only) filed on December 23, 2013, for the year ended December 31, 2012, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon, included therein, and
incorporated herein by reference. Such combined financial statements are incorporated herein by reference 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 file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to
the public over the Internet at the SECs website at www.sec.gov. Please note that the SECs website is included in this prospectus and any applicable prospectus supplement as an inactive textual reference only. The information
contained on the SECs website is not incorporated by reference into this prospectus and should not be considered to be part of this prospectus, except as described in the following paragraph. You may also read and copy any document we file
with the SEC at its public reference facility at 100 F Street, NE, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the
operation of the public reference facility.
DOCUMENTS INCORPORATED BY REFERENCE
We incorporate by reference into this prospectus and any applicable prospectus supplement certain information we file with the
SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus. Certain information that we subsequently file with the SEC
will automatically update and supersede 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
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934, as amended, until all the securities offered by this prospectus have been sold and all conditions to the consummation of such sales have been satisfied,
except that we are not incorporating any information included in a Current Report on Form 8-K that has been or will be furnished (and not filed) with the SEC, unless such information is expressly
incorporated herein by a reference in a furnished Current Report on Form 8-K or other furnished document:
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|
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our Annual Report on Form 10-K for the year ended December 31, 2013 (which financial statements and related audit report have been superseded by the financial statements and related audit report included in the
Current Report on Form 8-K filed on November 14, 2014) filed with the SEC on February 28, 2014; |
8
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2014 filed with the SEC on May 9, 2014, June 30, 2014 filed with the SEC on August 11, 2014, and September 30, 2014 filed
with the SEC on November 7, 2014; |
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portions of our Definitive Proxy Statement on Schedule 14A filed with the SEC on April 3, 2014 that are incorporated by reference into Part III of our Annual Report on
Form 10-K for the year ended December 31, 2013; |
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our Current Reports on Form 8-K filed with the SEC on |
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October 4, 2011 (Exhibits 99.3 and 99.4 only); |
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February 21, 2014 (Item 8.01 and Exhibit 99.2 only); |
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April 14, 2014 (excluding Item 7.01 and Exhibit 99.1); |
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May 8, 2014 (Item 8.01 and Exhibit 99.2 only); |
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May 15, 2014 (Item 8.01 and Exhibit 99.1 only); |
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June 16, 2014 (SEC Accession No. 0001193125-14-237656); |
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June 16, 2014 (SEC Accession No. 0001193125-14-237710) (Item 8.01 and Exhibit 99.1 only); |
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August 7, 2014 (Item 8.01 and Exhibit 99.2 only); |
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October 9, 2014 (Item 8.01 only); |
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November 6, 2014 (SEC Accession No. 0001193125-14-398918); |
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November 6, 2014 (SEC Accession No. 0001193125-14-399781) (Item 8.01 and Exhibit 99.2 only); |
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November 12, 2014 (Item 1.01 only); |
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November 14, 2014 (including a recast presentation of certain sections of Kindred Healthcare, Inc.s Annual Report on Form 10-K for the year ended December 31, 2013); and |
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November 17, 2014 (including the unaudited pro forma condensed combined financial statements as of and for the nine months ended September 30, 2014 and for the year ended December 31, 2013); |
9
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the description of our common stock and preferred stock contained in our Current Report on Form 8-K filed with the SEC on June 16, 2014; |
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Part I. Financial InformationItem 1. Financial Statements to Gentiva Health Services, Inc.s Quarterly Report on Form 10-Q for the quarter ended September 30, 2014 filed with the SEC on
November 14, 2014; |
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Part II. Financial InformationItem 8. Financial Statements and Supplementary Data to Gentiva Health Services, Inc.s Annual Report on Form 10-K/A for the year ended December 31, 2013 filed
with the SEC on November 14, 2014; and |
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Gentiva Health Services, Inc.s Current Report on Form 8-K/A (Amendment No. 1) (Exhibits 99.1 and 99.2 only) filed with the SEC on December 23, 2013. |
You may request a copy of these filings at no cost, by writing or calling us at the following address: 680 South Fourth Street,
Louisville, Kentucky 40202, Telephone: (502) 596-7300, Attention: Investor Relations.
10
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses payable by the Registrant in connection with the securities being registered hereby. Except
as otherwise noted, all of the fees set forth below are estimates.
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Filing Fee for Post-Effective Amendment to the Registration Statement |
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$ |
(1 |
) |
Legal Fees and Expenses |
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(2 |
) |
Accounting Fees and Expenses |
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(2 |
) |
Printing and Engraving Fees |
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(2 |
) |
Miscellaneous |
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(2 |
) |
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Total |
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$ |
(2 |
) |
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(1) |
Deferred in accordance with Rules 456(b) and 457(r) under the Securities Act. |
(2) |
An estimate of the aggregate amount of these expenses will be reflected in the applicable prospectus supplement. |
Item 15. Indemnification of Directors and Officers.
Pursuant to Section 145(a) of the Delaware General Corporation Law (the DGCL), a Delaware corporation may indemnify any person
who is or was a party or is threatened to be made a party to any proceeding (other than a derivative action) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation against expenses and amounts
actually and reasonably incurred in connection with the proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in the best interest, or not opposed to the best interest, of the corporation and, with
respect to any criminal proceeding, had no reasonable cause to believe such conduct was unlawful. Pursuant to Section 145(b) of the DGCL, in the case of proceedings brought by or in the right of the corporation, a Delaware corporation may
indemnify any person who is or was a party or is threatened to be made a party to any proceeding by reason of the fact that the person is or was a director, officer, employee or agent of the corporation against expenses actually and reasonably
incurred by the person in connection with such proceeding if the person acted in good faith and in a manner such person reasonably believed to be in the best interest, or not opposed to the best interest, of the corporation, but Section 145(b)
requires court approval before a person can be indemnified where such person has been adjudged to be liable to the corporation. Additionally, a Delaware corporation must indemnify officers and directors of the corporation against expenses if such
person is successful on the merits or in defense of any proceeding referred to above.
As permitted by Section 102(b)(7) of the DGCL,
our Certificate of Incorporation, in effect as of the date of this registration statement, includes a provision eliminating the personal liability of our directors to us or our stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of a directors duty of loyalty to us or our stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the DGCL (certain illegal distributions) or (iv) for transactions from which the director derives an improper personal benefit.
The indemnification of directors and officers authorized by the Certificate of Incorporation and our By-Laws is similar in scope to the
provisions of the DGCL summarized above. However, the indemnification provisions of the By-Laws are limited to (i) officers, directors, agents and employees who as of September 13, 1999, were employed by, or serving as directors of,
Kindred Healthcare, Inc. and (ii) agents and employees who were no longer employed by Kindred Healthcare, Inc. as of September 13, 1999, other than such agents and employees who were Kindred Healthcare, Inc.s officers and directors
prior to September 13, 1999.
II-1
Pursuant to the merger agreement related to the acquisition (the RehabCare
Acquisition) of RehabCare Group, Inc. and its consolidated subsidiaries (RehabCare), Kindred Healthcare, Inc. must, until June 1, 2017, indemnify and hold harmless each former director and officer of RehabCare against expenses
and amounts paid in connection with any proceeding in respect of or arising out of acts or omissions occurring or alleged to have occurred at or prior to the date of the RehabCare Acquisition in connection with such persons service as an
officer or director of RehabCare.
Kindred Healthcare, Inc. has entered into indemnification agreements with its directors and certain
officers. The indemnification agreements provide such directors and officers with indemnification to the fullest extent permitted by the DGCL or other applicable law. The form of indemnification agreement between Kindred Healthcare, Inc. and certain
of its officers is filed as Exhibit 10.31 to Ventas Form 10-K filed with the SEC on March 29, 1996. The form of indemnification agreement between Kindred Healthcare, Inc. and each member
of its board of directors is filed as Exhibit 10.21 to Kindred Healthcares Form 10-K filed with the SEC on March 1, 2002.
Kindred Healthcare, Inc. maintains a directors and officers liability insurance policy. Pursuant to the Rehabcare Acquisition
merger agreement, Kindred Healthcare, Inc. must, until June 1, 2017, also maintain a directors and officers insurance policy covering directors and officers of RehabCare covered as of the date of the RehabCare Acquisition.
Item 16. Exhibits.
See the
Exhibit Index, which follows the signature page to this registration statement and is herein incorporated by reference.
Item 17.
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;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 end of the estimated maximum offering range may be reflected in the form of prospectus filed with
the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective
registration statement; and
(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), (a)(1)(ii) and (a)(1)(iii) do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
II-2
(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 the purpose of determining liability under the Securities Act to
any purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of the registration statement in
reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the
prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial
distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to
be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing
prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the
Registrants annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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.
II-3
(c) Insofar as indemnification for liabilities arising 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 SEC 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 Securities Act and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements
for filing on Form S-3 and has duly caused this Post-Effective Amendment No. 1 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Louisville, State of Kentucky, on the 17th day
of November, 2014.
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KINDRED HEALTHCARE, INC. |
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By: |
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/s/ Paul J. Diaz |
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Paul J. Diaz |
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Chief Executive Officer |
Pursuant to the requirements of the Securities Act, this Post-Effective Amendment No. 1 to the registration
statement has been signed by the following persons in the capacities and on the dates indicated. This document may be executed in counterparts that when so executed shall constitute one registration statement, notwithstanding that all of the
undersigned are not signatories to the original of the same counterpart.
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Signatures |
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Title |
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Date |
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/s/ Paul J. Diaz
Paul J. Diaz |
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Chief Executive Officer and Director (Principal Executive Officer) |
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November 17, 2014 |
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/s/ Stephen D. Farber
Stephen D. Farber |
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Executive Vice President and Chief Financial Officer (Principal Financial Officer) |
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November 17, 2014 |
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/s/ John J. Lucchese
John J. Lucchese |
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Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) |
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November 17, 2014 |
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*
Phyllis R. Yale |
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Chair of the Board of Directors |
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November 17, 2014 |
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*
Joel Ackerman |
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Director |
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November 17, 2014 |
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*
Jonathan D. Blum |
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Director |
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November 17, 2014 |
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*
Thomas P. Cooper, M.D. |
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Director |
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November 17, 2014 |
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*
Heyward R. Donigan |
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Director |
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November 17, 2014 |
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*
Richard Goodman |
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Director |
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November 17, 2014 |
II-5
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Signatures |
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Title |
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Date |
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*
Christopher T. Hjelm |
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Director |
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November 17, 2014 |
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*
Frederick J. Kleisner |
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Director |
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November 17, 2014 |
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*
John H. Short, Ph.D. |
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Director |
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November 17, 2014 |
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By: |
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/s/ Joseph L. Landenwich |
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Joseph L. Landenwich |
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as Attorney-in-Fact |
II-6
EXHIBIT INDEX
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EXHIBIT NUMBER |
|
DESCRIPTION |
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|
1.1** |
|
Underwriting Agreement for common stock. |
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1.2** |
|
Underwriting Agreement for preferred stock. |
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1.3** |
|
Underwriting Agreement for depositary shares. |
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1.4** |
|
Underwriting Agreement for purchase contracts. |
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1.5** |
|
Underwriting Agreement for units. |
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|
2.1 |
|
Agreement and Plan of Merger, dated as of February 7, 2011, among Kindred Healthcare, Inc., Kindred Healthcare Development, Inc. and RehabCare Group, Inc. (incorporated by reference to Exhibit 2.1 to the Companys
Current Report on Form 8-K dated February 7, 2011 (File No. 001-14057)). |
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2.2 |
|
Amendment to Agreement and Plan of Merger, dated May 12, 2011, among Kindred Healthcare, Inc., Kindred Healthcare Development, Inc. and RehabCare Group, Inc. (incorporated by reference to Exhibit 2.1 to the Companys
Current Report on Form 8-K dated May 12, 2011 (File No. 001-14057)). |
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2.3 |
|
Agreement and Plan of Merger, dated as of October 9, 2014, among Gentiva Health Services, Inc., Kindred Healthcare, Inc. and Kindred Healthcare Development 2, Inc. (incorporated by reference to Exhibit 2.1 to the
Companys Current Report on Form 8-K dated October 14, 2014 (File No. 001-14057)). |
|
|
2.4 |
|
Agreement and Plan of Merger, dated as of November 11, 2014, among Kindred Healthcare, Inc., RehabCare Development 6, Inc., Centerre Healthcare Corporation, the Executing Stockholders (as defined therein) and the stockholder
representative named therein (incorporated by reference to Exhibit 2.1 of the Companys Current Report on Form 8-K dated November 12, 2014 (File No. 001-14057). |
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4.1 |
|
Articles IV, IX, X and XII of the Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 4.1 to the Companys Registration Statement on
Form S-3 filed August 31, 2001 (File No. 333-68838)). |
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|
4.2 |
|
Indenture (including form of Note), dated as of April 9, 2014, among Kindred Healthcare, Inc., the Guarantors named therein and Wells Fargo Bank, National Association, as Trustee (incorporated by reference to Exhibit 4.1
to the Companys Current Report on Form 8-K dated April 14, 2014 (File No. 001-14057)). |
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|
4.3 |
|
Third Amendment and Restatement Agreement dated as of October 31, 2014 to the Second Amended and Restated ABL Credit Agreement, by and among Kindred Healthcare, Inc., the other Credit Parties party thereto, the Consenting
Lenders and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K dated November 3, 2014 (File No. 001-14057)). |
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4.4 |
|
Third Amendment and Restatement Agreement dated as of April 9, 2014 to the Second Amended and Restated Term Loan Credit Agreement, by and among Kindred Healthcare, Inc., the other Credit Parties party thereto, the New Term
Lenders and JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent (incorporated by reference to Exhibit 10.2 to the Companys Current Report on Form 8-K dated April 14, 2014 (File No. 001-14057)). |
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4.5* |
|
Form of Common Stock Certificate. |
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|
4.6** |
|
Form of Preferred Stock Certificate. |
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|
4.7** |
|
Form of Certificate of Designation of Preferred Stock. |
II-7
|
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|
EXHIBIT NUMBER |
|
DESCRIPTION |
|
|
4.8** |
|
Form of Depositary Share Agreement. |
|
|
4.9** |
|
Form of Depositary Certificate. |
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|
4.10** |
|
Form of Purchase Contract Agreement. |
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|
4.11** |
|
Form of Purchase Certificate. |
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|
4.12** |
|
Form of Unit Agreement. |
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|
4.13** |
|
Form of Unit Certificate. |
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|
5.1* |
|
Opinion of Cleary Gottlieb Steen & Hamilton LLP. |
|
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12.1* |
|
Computation of Ratio of Earnings to Combined Fixed Charges and Preference Dividends. |
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|
23.1* |
|
Consent of PricewaterhouseCoopers LLP relating to the audit report on the financial statements of Kindred Healthcare, Inc. |
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|
23.2* |
|
Consent of KPMG LLP relating to the audit report on the financial statements of RehabCare Group, Inc. |
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|
23.3* |
|
Consent of PricewaterhouseCoopers LLP relating to the audit report on the financial statements of Gentiva Health Services, Inc. |
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|
23.4* |
|
Consent of Ernst & Young LLP relating to the audit report on the financial statements of Harden Healthcare Holdings, Inc. Net Asset Sold (Certain Assets, Liabilities and Operations Related to the Harden Home Health and Hospice
Divisions). |
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23.5* |
|
Consent of Cleary Gottlieb Steen & Hamilton LLP (included in Exhibit 5.1). |
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|
24.1 |
|
Power of Attorney (as previously included on the signature page of the Form S-3 (File No. 333-196904) filed on June 16, 2014). |
** |
To be filed by post-effective amendment or pursuant to a Current Report on Form 8-K and incorporated herein by reference. |
II-8
Exhibit 4.5
Exhibit 4.5
016570|
003590|127C|RESTRICTED||4|057-423
COMMON STOCK
COMMON STOCK
THIS CERTIFICATE IS TRANSFERABLE IN CANTON, MA AND NEW YORK, NY
Shares
**600620*********600620*********600620*********600620*********600620**
Certificate Number
ZQ 000000
KINDRED HEALTHCARE, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFIES THAT
MR. SAMPLE & MRS. SAMPLE & MR. SAMPLE & MRS. SAMPLE
** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David
Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander
David Sample **** Mr. Alexander David Sample MR **** Mr. Alexander . David Sample **** Mr. Alexander David &Sample **** Mr. Alexander . David Sample **** Mr. Alexander David & Sample **** Mr. Alexander David Sample **** Mr. Alexander David
Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander
David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David . Sample **** Mr. Alexander David Sample & ****
Mr . Alexander David Sample . **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David
Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander David Sample **** Mr. Alexander
David Sample **** Mr. Sample **** Mr. Sample
CUSIP 494580 10 3
SEE REVERSE FOR CERTAIN DEFINITIONS
is the registered owner of
SIX HUNDRED THOUSAND
SIX HUNDRED AND TWENTY
**600620**Shares****600620**Shares****600620**Shares****600620**Shares****600620**Shares****600620**Shares**
**600620**Shares****600620**Shares***
*600620**Shares****600620**Shares****600620**Shares****600620**Shares****600620**Shares****600620**Shares
****600620**Shares****600620**Shares****
600620**Shares****600620**Shares****600620**Shares****600620**Shares****600620**Shares****600620**Shares
****600620**Shares****600620**Shares****6
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****600620**Shares****600620**Shares****60 * * *
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****600620**Shares****600620**Shares****600
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FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
KINDRED HEALTHCARE, INC.
transferable on the
books of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this certificate properly endorsed. This certificate is not valid unless countersigned and registered by the Transfer Agent and Registrar.
Witness the signatures of the duly authorized officers of the Corporation.
DATED <<Month Day, Year>>
COUNTERSIGNED AND REGISTERED:
COMPUTERSHARE TRUST
COMPANY, N.A.
TRANSFER AGENT AND REGISTRAR,
By
AUTHORIZED SIGNATURE
Chief Executive Officer and
President
Secretary
Kindred Healthcare, Inc.
PO BOX 43004,
Providence, RI 02940-3004
MR A SAMPLE DESIGNATION (IF ANY) ADD 1 ADD 2 ADD 3 ADD 4
CUSIP
XXXXXX XX X
Holder ID
XXXXXXXXXX
Insurance Value
1,000,000.00
Number of Shares
123456
DTC
12345678 123456789012345
Certificate Numbers
Num/No.
Denom.
Total
1234567890/1234567890
1
1
1
1234567890/1234567890
2
2
2
1234567890/1234567890
3
3
3
1234567890/1234567890
4
4
4
1234567890/1234567890
5
5
5
1234567890/1234567890
6
6
6
Total Transaction
7
1234567
KINDRED
HEALTHCARE, INC.
This Corporation will furnish without charge to each stockholder who so requests, a copy of
the designations, powers, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Any such requests may
be addressed to the Secretary of the Corporation.
The Common Stock represented by this certificate is subject
to restrictions on ownership and transfer. The Existing Holder may not Beneficially Own any Common Stock in excess of the Existing Holder Limit. All capitalized terms used in this Legend have the meanings set forth in the Amended and Restated
Certificate of Incorporation of the Corporation, a copy of which, including the restrictions on ownership and transfer, will be sent without charge to each stockholder who so requests. If the restrictions on ownership and transfer are violated, the
Common Stock represented hereby will be automatically designated as Excess Stock which will be held in trust by the Trustee for the benefit of the Beneficiary.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in common
UNIF GIFT MIN ACT -.as Custodian for
(Cust)
(Minor)
under Uniform Gifts to Minors Act.
(State)
(Shares)
Additional abbreviations may also be
used though not in the above list.
For value received, hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE)
of the Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint
Shares
to transfer the said Stock on the books of the within-named Corporation with full power of substitution in the premises.
Attorney
Dated: 20
Signature:
Signature: Notice: The signature to this assignment must correspond with the name as written upon the face of the
certificate, in every particular, without alteration or enlargement, or any change whatever.
Signature(s)
Guaranteed: Medallion Guarantee Stamp
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (Banks, Stockbrokers, Savings and Loan Associations and Credit Unions) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15.
Exhibit 5.1
November 17, 2014
Kindred Healthcare, Inc.
680 South Fourth Street
Louisville, Kentucky 40202
Ladies and Gentlemen:
We have acted as special counsel to Kindred Healthcare, Inc., a Delaware corporation (the Company), in connection with the
preparation and filing with the Securities and Exchange Commission (the Commission) of the Companys post-effective amendment to the registration statement on Form S-3 (excluding the documents incorporated by reference therein, the
Registration Statement) filed pursuant to the Securities Act of 1933, as amended (the Securities Act), relating to the offering from time to time, together or separately in one or more series (if applicable), of
(i) shares of the Companys common stock, par value $0.25 per share (the Common Stock); (ii) shares of the Companys preferred stock, par value $0.25 per share (the Preferred Stock); (iii) fractional
interests in shares of Common Stock or Preferred Stock evidenced by depositary receipts (the Depositary Shares); (iv) contracts for the purchase or sale of Common Stock, Preferred Stock or Depositary Shares (the Purchase
Contracts); and (v) units consisting of one or more Purchase Contracts, shares of Preferred Stock, shares of Common Stock or any combination thereof (the Units). The Common Stock, Preferred Stock, Depositary Shares, Purchase
Contracts and Units are referred to herein collectively as the Securities.
The Securities being registered under the
Registration Statement will have an indeterminate aggregate initial offering price and will be offered on a continuous or delayed basis pursuant to the provisions of Rule 415 under the Securities Act.
The Depositary Shares are to be issued from time to time under one or more deposit agreements (each such deposit agreement, a Deposit
Agreement) to be entered into between the Company and the depositary to be named therein.
Kindred Healthcare, Inc., p.
2
The Purchase Contracts are to be issued from time to time under one or more purchase contract
agreements (each such purchase contract agreement, a Purchase Contract Agreement) to be entered into between the Company and the purchase contract agent to be named therein.
The Units are to be issued from time to time under one or more unit agreements (each such unit agreement, a Unit Agreement) to be
entered into between the Company and the unit agent to be named therein.
In arriving at the opinions expressed below, we have reviewed
the following documents:
(a) the Registration Statement and the documents incorporated by reference therein; and
(b) copies of the Companys Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws certified by the Secretary
of State of the State of Delaware and the corporate secretary of the Company, respectively.
In addition, we have reviewed the originals or copies
certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other documents, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity
to the originals of all documents submitted to us as copies. In addition, we have assumed and have not verified the accuracy as to factual matters of each document we have reviewed.
Based on the foregoing, and subject to the further assumptions and qualifications set forth below, it is our opinion that:
|
1. |
The Common Stock, including Common Stock to be issued upon conversion, exchange or exercise of any other Security in accordance with its terms, will be validly issued by the Company, fully paid and nonassessable.
|
|
2. |
The Preferred Stock will be validly issued by the Company, fully paid and nonassessable. |
|
3. |
The Depositary Shares to be sold by the Company, upon the due issuance by the depositary of depositary receipts (including any master depositary receipt issued in connection therewith) evidencing such Depositary Shares
against the deposit of the shares of Common Stock or Preferred Stock, as the case may be, in respect thereof in accordance with the provisions of the applicable Deposit Agreement, will be validly issued and the persons in whose names the depositary
receipts are registered will be entitled to the rights specified therein and in the Deposit Agreement. |
|
4. |
The Purchase Contracts will be the valid, binding and enforceable obligations of the Company. |
Kindred Healthcare, Inc., p.
3
|
5. |
The Units will be the valid, binding and enforceable obligations of the Company. |
Insofar as
the foregoing opinions relate to the validity, binding effect or enforceability of any agreement or obligation of the Company, (x) we have assumed that the Company and each other party to such agreement or obligation has satisfied or, prior to
the issuance of the Securities, will satisfy, those legal requirements that are applicable to it to the extent necessary to make such agreement or obligation enforceable against it, and (y) such opinions are subject to applicable bankruptcy,
insolvency and similar laws affecting creditors rights generally and to general principles of equity.
In rendering the opinions
expressed above, we have further assumed that (i) prior to the issuance of the Securities, the Company will authorize the offering and issuance of the Securities and will duly authorize, approve and establish the final terms and conditions
thereof, which terms will conform to the descriptions thereof in the Registration Statement and will not violate any applicable law, conflict with any matter of public policy, result in a default under or breach of any agreement or instrument
binding upon the Company or violate any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company; (ii) prior to the issuance of the Securities, the Board of Directors of the Company will duly
authorize, establish and approve the terms of any applicable Preferred Stock as contemplated by the Companys Amended and Restated Certificate of Incorporation, and the Company will duly authorize, execute and deliver any applicable Deposit
Agreement, Purchase Contract Agreement, Unit Agreement or other agreement necessary with respect to the Securities or contemplated by such Securities, and will take any other appropriate additional corporate action; (iii) any receipts
evidencing Depositary Shares, Purchase Contracts or Units and any agreement governing those Securities will be governed by New York law; (iv) the Securities will be offered, issued, sold and delivered in compliance with applicable law and any
requirements therefor set forth in any corporate action authorizing such Securities and any agreement governing those Securities and in the manner contemplated by the Registration Statement; (v) the Securities will be offered, sold and
delivered to, and paid for by, the purchasers thereof at the price specified in, and in accordance with the terms of, an agreement or agreements duly authorized, executed and delivered by the parties thereto, which price, in the case of Common Stock
or Preferred Stock, shall not be less than the par value of such Common Stock or Preferred Stock; and (vi) if issued in certificated form, certificates representing the Securities will be duly executed and delivered and, to the extent required
by any applicable agreement, duly authenticated and countersigned, and if issued in book-entry form, the Securities will be duly registered to the extent required by any applicable agreement.
We note that any designation in the Securities or any applicable agreement governing those Securities of the U.S. federal courts sitting in
New York City as the venue for actions or proceedings relating to such Securities or agreement (notwithstanding any waiver thereof) is subject to the power of such courts to transfer actions pursuant to 28 U.S.C. §1404(a) or to dismiss such
actions or proceedings on the grounds that such a federal court is an inconvenient forum for such an action or proceeding.
Kindred Healthcare, Inc., p.
4
The foregoing opinions are limited to the law of the State of New York and the General
Corporation Law of the State of Delaware.
We hereby consent to the use of our name in the prospectus constituting a part of the
Registration Statement under the heading Validity of the Securities and in any prospectus supplement related thereto as counsel for the Company that has passed on the validity of the Securities, and to the use of this opinion as a part
(Exhibit 5.1) of the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder. The opinions expressed herein are rendered on and as of the date hereof, and we assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising
subsequent to the date hereof that might affect the opinions expressed herein.
|
|
|
Very truly yours, |
|
CLEARY GOTTLIEB STEEN & HAMILTON LLP |
|
|
By: |
|
/s/ Nicolas Grabar |
|
|
Nicolas Grabar, a Partner |
Exhibit 12.1
Kindred Healthcare, Inc.
Statement of Computation of Ratio of Earnings to Fixed Charges
(In thousands, except statistics)
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|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, |
|
|
Nine Months ended September 30, |
|
|
|
2009 |
|
|
2010 |
|
|
2011 |
|
|
2012 |
|
|
2013 |
|
|
2014 |
|
COMPUTATION OF FIXED CHARGES |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expensed and capitalized in continuing operations, including amortization of debt discounts and fees |
|
$ |
10,005 |
|
|
$ |
8,271 |
|
|
$ |
82,355 |
|
|
$ |
110,236 |
|
|
$ |
108,082 |
|
|
$ |
128,855 |
|
Interest expensed and capitalized in discontinued operations, including amortization of debt discounts and fees |
|
|
112 |
|
|
|
104 |
|
|
|
78 |
|
|
|
71 |
|
|
|
52 |
|
|
|
16 |
|
Interest component of rental expense(1) |
|
|
122,049 |
|
|
|
124,169 |
|
|
|
137,715 |
|
|
|
148,086 |
|
|
|
141,806 |
|
|
|
91,143 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fixed charges |
|
$ |
132,166 |
|
|
$ |
132,544 |
|
|
$ |
220,148 |
|
|
$ |
258,393 |
|
|
$ |
249,940 |
|
|
$ |
220,014 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
COMPUTATION OF EARNINGS: |
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pretax income from continuing operations before adjustment for noncontrolling interest in consolidated subsidiaries and income or loss
from equity investees |
|
$ |
39,264 |
|
|
$ |
25,899 |
|
|
$ |
(82,501 |
) |
|
$ |
(17,041 |
) |
|
$ |
(54,721 |
) |
|
$ |
9,704 |
(2) |
Fixed charges |
|
|
132,166 |
|
|
|
132,544 |
|
|
|
220,148 |
|
|
|
258,393 |
|
|
|
249,940 |
|
|
|
220,014 |
|
Distributed income of equity investees |
|
|
2,477 |
|
|
|
700 |
|
|
|
2,865 |
|
|
|
1,917 |
|
|
|
1,580 |
|
|
|
272 |
|
Amortization of capitalized interest, less interest capitalized |
|
|
(2,080 |
) |
|
|
(1,015 |
) |
|
|
(1,241 |
) |
|
|
(2,104 |
) |
|
|
87 |
|
|
|
149 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
171,827 |
|
|
$ |
158,128 |
|
|
$ |
139,271 |
|
|
$ |
241,165 |
|
|
$ |
196,886 |
|
|
$ |
230,139 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
RATIO OF EARNINGS TO FIXED CHARGES |
|
|
1.30x |
|
|
|
1.19x |
|
|
|
0.63x |
|
|
|
0.93x |
|
|
|
0.79x |
|
|
|
1.05x |
|
(1) |
Management has estimated the interest component of rent expense to be 33%. |
(2) |
Includes transaction costs related to the acquisition of Gentiva Health Services, Inc. totaling $5.3 million. |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated February 28, 2014, except with respect to
our opinion on the consolidated financial statements insofar as it relates to the effects of the discontinued operations presentation of certain hospitals and nursing centers, which is as of November 14, 2014, relating to the financial statements,
financial statement schedule and the effectiveness of internal control over financial reporting, which appears in Kindred Healthcare, Inc.s Current Report on Form 8-K dated November 14, 2014. We also consent to the reference to us under the
heading Experts in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Louisville, Kentucky
November 17, 2014
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Kindred Healthcare, Inc.:
We consent to the use of our report dated February 28, 2011, except for note 24, as to which the date is October 4, 2011, with respect to the
consolidated balance sheets of RehabCare Group, Inc. as of December 31, 2010 and 2009, and the related consolidated statements of earnings, comprehensive income, changes in equity, and cash flows for each of the years in the three-year period
ended December 31, 2010, which appears in Kindred Healthcare, Inc.s Current Report on Form 8-K dated October 4, 2011, incorporated herein by reference and to the reference to our firm under the heading Experts in Kindred
Healthcare, Inc.s Registration Statement on Form S-3.
Our report covering the December 31, 2010 consolidated financial statements of RehabCare
Group, Inc. contains an explanatory paragraph that states that RehabCare Group, Inc. adopted FASB Financial Accounting Standard No. 141(R), Business Combinations (included in FASB ASC Topic 805, Business Combinations), as of
January 1, 2009.
/s/ KPMG LLP
St. Louis, Missouri
November 14, 2014
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of Kindred Healthcare, Inc. of our report dated March 12,
2014, except for the effects of the restatement and revision discussed in Note 2 to the consolidated financial statements and the matter described in the second paragraph of Managements Report on Internal Control over Financial Reporting as to
which the date is November 14, 2014, relating to the consolidated financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in Gentiva Health Services, Inc.s
Annual Report on Form 10-K/A for the year ended December 31, 2013. We also consent to the reference to us under the heading Experts in such Registration Statement.
/s/PricewaterhouseCoopers LLP
Atlanta, GA
November 14, 2014
Exhibit 23.4
CONSENT OF INDEPENDENT AUDITORS
We
consent to the reference to our firm under the caption Experts in the Post-Effective Amendment No. 1 to Form S-3 Registration Statement (No. 333-196804) of Kindred Healthcare, Inc. dated November 17, 2014, and to the
incorporation by reference therein of our report dated December 11, 2013, with respect to the combined financial statements of Harden Healthcare Holdings, Inc. Net Assets Sold (Certain Assets, Liabilities and Operations Related to the Harden
Home Health and Hospice Divisions) included in Gentiva Health Services, Inc.s Current Report on Form 8-K/A (Amendment No. 1) (Exhibits 99.1 and 99.2 only) dated October 18, 2013 and filed with the Securities and Exchange Commission
on December 23, 2013.
/s/ Ernst & Young LLP
Dallas, Texas
November 13, 2014
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