================================================================================
Title of Proposed Proposed
Securities maximum maximum
to be Amount offering aggregate Amount of
registration to be price offering registration
registered registered* per share** price** fee
- --------------------------------------------------------------------------------
Capital Stock
(Par value $1 450,000 shs. $38.41 $16,462,849 $1,331.84
per share)
================================================================================
*The number of shares being registered is the number of shares covered
by the 2002 Stock Incentive Plan. In addition to such shares, this Registration
Statement covers an indeterminate number of shares which, by reason of certain
events specified in such Plan, may become subject to issuance thereunder.
**Estimated solely for the purpose of calculating registration fee.
This amount is based on (1) a price of $36.90 per share for outstanding options
to purchase 214,900 shares, (2) a price of $35.85 per share for outstanding
options to purchase 194,200 shares, and (3) a price of $38.41 per share based on
the average of the high and low price of a share of capital stock reported on
the New York Stock Exchange on September 19, 2003 for options to purchase 40,900
shares.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement.
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2002;
(2) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 ("Exchange Act") for period since
December 31, 2002;
(3) The Company's Proxy Statement dated April 4, 2003; and
(4) The "Description of Capital Stock" incorporated by reference in the
Company's Registration Statement on Form S-3 filed on November 26, 1991,
including any amendments or reports filed to update such description.
All documents filed by the Company pursuant to Section 13, 14 or 15(d)
of the Exchange Act after the date of this Registration Statement and prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part thereof from the date any such documents are filed.
Item 4. Description of Securities
N/A
Item 5. Interest of Named Experts and Counsel
Legal matters in connection with the issuance of the Company's Capital
Stock offered hereby have been passed upon by Naomi C. Dallob, 2600 Chemed
Center, 255 East 5th Street, Cincinnati, Ohio 45202. Ms. Dallob is Vice
President and Secretary, and a stockholder of the Company.
Item 6. Indemnification of Directors and Officers
The Certificate of Incorporation and By-laws of the Company, and
separate Indemnity Agreements, provide for the indemnification of each director
and officer of the Company in connection with any claim, action, suit or
proceeding brought or threatened by reason of his position with the Company. In
addition, the General Corporation Law of the
II-1
State of Delaware ("Delaware Law") permits the Company to indemnify its
directors, officers and others against judgments, fines, amounts paid in
settlement and attorneys' fees resulting from various types of legal actions or
proceedings if the actions of the party being indemnified meet the standards of
conduct specified in the Delaware Law. The Company also maintains directors and
officers liability insurance for the benefit of its directors and officers.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or controlling persons of
the Company pursuant to the provisions referred to above or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
Item 7. Exemption from Registration Claimed
N/A
Item 8. Exhibits.
Page Number or
Incorporation
by Reference
Number
Under Item 601 File Number
Exhibit Regulation and
Number S-K Filing Date
- -----------------------------------------------------------------------------------------------
1 (4) Certificate of Incorporation Form S-3
Reg. No. 33-44177
11/26/91
2 (4) Amendment to Certificate E-1
of Incorporation
3 (4) 2002 Stock Incentive Plan 2002 Proxy Statement
4/05/02
4 (4) Form of Option under 2002 E-2 through E-4
Stock Incentive Plan
5 (5) Opinion and Consent of Counsel E-5
6 (23) Consent of Independent E-6
Accountants
7 (24) Powers of Attorney E-7 through E-14
Item 9. Undertakings.
The undersigned registrant hereby undertakes (1) to file, during any
period in which it offers or sells securities, a post-effective amendment to
this registration statement to include
II-2
any additional or changed material information on the plan of distribution; (2)
for determining liability under the Securities Act of 1933, it will treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering; and (3) it will file a post-effective amendment to remove from
registration any of the securities which remain unsold at the end of the
offering.
For purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 ("Act") may be permitted to directors, officers or controlling
persons of the Company pursuant to the provisions referred to above or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Company of expenses incurred or paid in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
against the Company in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cincinnati, State of Ohio, on September 25, 2003.
ROTO-ROOTER, INC.
By: /s/ Kevin J. McNamara
---------------------------------------
Kevin J. McNamara
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Kevin J. McNamara President and Chief Executive September 25, 2003
- --------------------- Officer
Kevin J. McNamara (Principal Executive Officer)
/s/ Timothy S. O'Toole Executive Vice President September 25, 2003
- ---------------------- and Treasurer
Timothy S. O'Toole (Principal Financial Officer)
/s/ Arthur V. Tucker Vice President and Controller September 25, 2003
- -------------------- (Principal Accounting Officer)
Arthur V. Tucker
Edward L. Hutton* Sandra E. Laney*
Charles H. Erhart, Jr. Donald E. Saunders*
Joel F. Gemunder* George J. Walsh III*
Patrick P. Grace* Frank E. Wood* DIRECTORS
Thomas C. Hutton*
/s/ Naomi C. Dallob September 25, 2003
- -------------------
Naomi C. Dallob
Vice President and Secretary
- ----------------
*Naomi C. Dallob signing her name hereto signs this document on behalf
of each of the persons indicated above pursuant to powers of attorney duly
executed, filed with the Securities and Exchange Commission.
/s/ Naomi C. Dallob
-----------------------------------
Naomi C. Dallob, Attorney-in-Fact
INDEX TO EXHIBITS
Page Number
or
Incorporation by Reference
----------------------------------------------------
Number
Under Item 601 File Number
Exhibit Regulation and Previous
Number S-K Filing Date Exhibit
- --------------------------------------------------------------------------------------------------------------
1 4.1 Certificate of Incorporation Form S-3 4.1
Reg. No.
33-44177
11/26/91
2 4.1.1 Amendment to Certificate E-1
of Incorporation
3 4.2 2002 Stock Incentive Plan 2002 Proxy A
Statement
4/05/02
4 4.3 Form of Option Under E-2 through E-4
2002 Stock Option Plan
5 5 Opinion and Consent of E-5
Counsel
6 23 Consent of Independent E-6
Accountants
7 24 Powers of Attorney E-7 through E-14
EXHIBIT 4.1.1
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF CHEMED CORPORATION
Chemed Corporation, a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of March 7, 2003
resolutions were duly adopted setting forth a proposed amendment to the
Certificate of Incorporation of said corporation, declaring said amendment to be
advisable and calling a meeting of the stockholders of said corporation for
consideration thereof. The resolution setting forth the proposed amendment is as
follows:
RESOLVED,That the Certificate of Incorporation of this
corporation be amended by changing Article I thereof
so that, as amended said Article shall be and read as
follows:
"The name of the corporation is Roto-Rooter, Inc."
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, an annual meeting of the stockholders of said corporation was duly
called and held on May 19, 2003 upon notice in accordance with Section 222 of
the General Corporation Law of the State of Delaware, at which meeting the
necessary number of shares as required by statute were voted in favor of the
amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said Chemed Corporation has caused this certificate
to be signed by its President and Chief Executive Officer and attested by its
Vice President and Secretary, this 19th day of May, 2003.
(Corporate Seal)
Attest:
By: /s/ Naomi C. Dallob By: /s/ Kevin J. McNamara
----------------------------------- -----------------------------------
Naomi C. Dallob, Secretary Kevin J. McNamara
President & Chief Executive Officer
E-1
EXHIBIT 4.3
May 20, 2002
In accordance with the 2002 Stock Incentive Plan (the "Plan") of
Roto-Rooter, Inc. (the "Corporation"), you are hereby granted an option to
purchase shares of the capital stock, par value $1.00 per share, of the
Corporation upon the following terms and conditions.
(1) The purchase price shall be $ per share. Payment thereof
shall be made in cash or, subject to the next sentence, by delivery to the
Corporation of shares of capital stock of the Corporation which shall be valued
at their Fair Market Value on the date of exercise, or in a combination of cash
and such shares. Your right to pay the purchase price, in whole or in part, by
delivery to the Corporation of shares of capital stock of the Corporation is
expressly subject to temporary or permanent revocation or withdrawal at any time
and from time to time by action of the Board of Directors of the Corporation
without any requirement that advance notice of such revocation or withdrawal be
given to you.
(2) Subject to the provisions of paragraphs (3) and (6), this option is
exercisable in whole or in part at any time and from time to time as follows:
shares on or after November 20, 2002
------------------
shares on or after November 20, 2003
------------------
shares on or after November 20, 2004
------------------
shares on or after November 20, 2005
------------------
Once an installment becomes exercisable, it may be exercised at any time in
whole or in part until the expiration or termination of this option. Neither
this option nor any right hereunder may be assigned or transferred by you,
except by will, the laws of descent and distribution, pursuant to a qualified
Domestic Relations order, or to a permitted transferee. It may be exercised
during your life only by you or by a permitted transferee. Within fifteen (15)
months after your death it may be exercised only by your estate, by a permitted
transferee, or by a person who acquired the right to exercise the option by
bequest or inheritance or by reason of your death. At the time of each exercise
of this option, you or the person or persons exercising the option shall, if
requested by the Corporation, give assurances, satisfactory to counsel to the
Corporation, that the shares are being acquired for investment and
E-2
not with a view to resale or distribution thereof and assurances in respect of
such other matters as the Corporation may deem desirable to assure compliance
with all applicable legal requirements.
(3) This option, to the extent that it shall not have been exercised,
shall terminate when you cease to be an employee of the Corporation or a
Subsidiary, unless you cease to be an employee because of your resignation with
the consent of the Compensation/Incentive Committee or because of your death,
incapacity or retirement under a retirement plan of the Corporation or a
Subsidiary. If you cease to be an employee because of such resignation, this
option shall terminate upon the expiration of three months after you cease to be
an employee, except as provided in the next sentence. If you cease to be an
employee because of your death, incapacity or retirement under a retirement plan
of the Corporation or a Subsidiary, or if you cease to be an employee because of
your resignation with the consent of the Compensation/Incentive Committee and
die during the three-month period referred to in the preceding sentence, this
option shall terminate fifteen (15) months after you ceased to be an employee.
Where this option is exercised more than three months after termination of
employment, as aforesaid, only those installments which shall have become
exercisable prior to the expiration of three months after you ceased to be an
employee, whether by death or otherwise, may be exercised. A leave of absence
for military or governmental service or for other purposes shall not, if
approved by the Compensation/Incentive Committee be deemed a termination of
employment within the meaning of this paragraph (3), provided, however, that
this option may not be exercised during any such leave of absence.
Notwithstanding the foregoing provisions of this paragraph (3) or any provision
of the Plan, this option shall not be exercisable after the expiration of ten
years from the date this option is granted.
(4) The number and class of shares or other securities covered by this
option and the price to be paid therefore shall be subject to adjustment as, and
under the circumstances, provided in Section 8 of the Plan.
(5) This option may be exercised only by serving written notice on the
Secretary or Treasurer of the Corporation. The Corporation shall deliver the
shares to you against payment; provided, however, no shares shall be issued or
transferred pursuant to this option unless and until all legal requirements
applicable to the issuance or transfer of such shares have, in the opinion of
the counsel to the Corporation, been complied with. Any Federal, state or local
withholding taxes applicable to any compensation you may realize by reason of
the exercise of the option or any subsequent disposition of the shares acquired
on exercise shall, upon request, be remitted to the Corporation or the
Subsidiary by which you are employed at the time of exercise or sale, as the
case may be. You shall have the rights of a stockholder only as to stock
actually delivered to you.
E-3
(6) If you are or become an employee of a Subsidiary, the Corporation's
obligations hereunder shall be contingent on the approval of the Plan and this
option by the Subsidiary and the Subsidiary's agreement that (a) the Corporation
may administer the Plan on its behalf, and (b) upon the exercise of the option,
it will purchase from the Corporation the shares subject to the exercise at
their Fair Market Value on the date of exercise, such shares to be then
transferred by the Subsidiary to the holder of this option upon payment by the
holder of the purchase price to the Subsidiary. Where appropriate, such approval
and agreement of the Subsidiary shall be indicated by its signature below. The
obligations of the Subsidiary so undertaken may be waived by the Corporation.
(7) The Plan is hereby incorporated by reference. Each term which is
defined in the Plan and used in this option shall have the same meaning in this
option as it has in the Plan. This option is granted subject to the Plan and
shall be construed to conform to the Plan.
Very truly yours,
ROTO-ROOTER, INC.
By: __________________________
Vice President & Secretary
Receipt Acknowledged:
- ----------------------
Employee
E-4
EXHIBIT 5
OPINION OF NAOMI C. DALLOB, ESQ.
September 25, 2003
Roto-Rooter, Inc.
255 E. Fifth Street
2600 Chemed Center
Cincinnati, OH 45202
Dear Sir or Madam:
In connection with the Registration Statement on Form S-8 to be filed
by Roto-Rooter, Inc. (the "Corporation") with the Securities and Exchange
Commission covering 450,000 shares of the Corporation's capital stock, par value
$1 per share (the "Capital Stock"), to be issued pursuant to the Corporation's
2002 Stock Incentive Plan (the "Plan"), you have requested me as Vice President
and Secretary to the Corporation to render my opinion with respect to the
matters to which reference is made herein.
I have examined and am familiar with the Certificate of Incorporation
and By-laws of the Corporation, the minutes of the meetings of its directors and
stockholders, the Plan and the stock incentives to be granted pursuant thereto.
Based upon the foregoing, I am of the opinion that the shares of
Capital Stock issued pursuant to the stock incentives granted pursuant to and in
accordance with the terms of the Plan will, when issued in accordance with the
terms of said stock incentives, be validly issued and outstanding, fully paid
and non-assessable shares of Capital Stock of the Corporation.
I hereby consent to the filing of this opinion as an exhibit to said
Registration Statement.
Sincerely,
/s/ Naomi C. Dallob
--------------------------------------------
Naomi C. Dallob
Vice President and Secretary
E-5
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 7, 2003 relating to the
financial statements, which appears in the 2002 Annual Report to Stockholders of
Chemed Corporation (now named Roto-Rooter, Inc.), which is incorporated by
reference in Chemed Corporation's Annual Report on Form 10-K for the year ended
December 31, 2002. We also consent to the incorporation by reference of our
report dated March 28, 2003 relating to the Financial Statement Schedule, which
appears in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PricewaterhouseCoopers LLP
Cincinnati, Ohio
September 25, 2003
E-6
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, a Director of
Roto-Rooter, Inc., hereby constitutes and appoints Kevin J. McNamara, Timothy S.
O'Toole, Arthur V. Tucker and Naomi C. Dallob the true and lawful
attorneys-in-fact of the undersigned, with full power in each to act without the
others, for and in the name of the undersigned as such Director to sign any and
all Registration Statements and amendments thereto, including Post-Effective
Amendments, filed with the Securities and Exchange Commission relating to
registration under the Securities Act of 1933 of interests in or Capital Stock
of Roto-Rooter, Inc. to be offered and sold pursuant to its 2002 Stock Incentive
Plan.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
this 22nd day of September, 2003.
/s/ Edward L. Hutton
---------------------------
Edward L. Hutton
E-7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, a Director of
Roto-Rooter, Inc., hereby constitutes and appoints Kevin J. McNamara, Timothy S.
O'Toole, Arthur V. Tucker and Naomi C. Dallob the true and lawful
attorneys-in-fact of the undersigned, with full power in each to act without the
others, for and in the name of the undersigned as such Director to sign any and
all Registration Statements and amendments thereto, including Post-Effective
Amendments, filed with the Securities and Exchange Commission relating to
registration under the Securities Act of 1933 of interests in or Capital Stock
of Roto-Rooter, Inc. to be offered and sold pursuant to its 2002 Stock Incentive
Plan.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand and seal
this 22nd day of September, 2003.
/s/ Sandra E. Laney
------------------------------
Sandra E. Laney
E-8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, a Director of
Roto-Rooter, Inc., hereby constitutes and appoints Kevin J. McNamara, Timothy S.
O'Toole, Arthur V. Tucker and Naomi C. Dallob the true and lawful
attorneys-in-fact of the undersigned, with full power in each to act without the
others, for and in the name of the undersigned as such Director to sign any and
all Registration Statements and amendments thereto, including Post-Effective
Amendments, filed with the Securities and Exchange Commission relating to
registration under the Securities Act of 1933 of interests in or Capital Stock
of Roto-Rooter, Inc. to be offered and sold pursuant to its 2002 Stock Incentive
Plan.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
this 18th day of September, 2003.
/s/ Joel F. Gemunder
-----------------------------------
Joel F. Gemunder
E-9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, a Director of
Roto-Rooter, Inc., hereby constitutes and appoints Kevin J. McNamara, Timothy S.
O'Toole, Arthur V. Tucker and Naomi C. Dallob the true and lawful
attorneys-in-fact of the undersigned, with full power in each to act without the
others, for and in the name of the undersigned as such Director to sign any and
all Registration Statements and amendments thereto, including Post-Effective
Amendments, filed with the Securities and Exchange Commission relating to
registration under the Securities Act of 1933 of interests in or Capital Stock
of Roto-Rooter, Inc. to be offered and sold pursuant to its 2002 Stock Incentive
Plan.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
this 23rd day of September, 2003.
/s/ Patrick P. Grace
-----------------------------------
Patrick P. Grace
E-10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, a Director of
Roto-Rooter, Inc., hereby constitutes and appoints Kevin J. McNamara, Timothy S.
O'Toole, Arthur V. Tucker and Naomi C. Dallob the true and lawful
attorneys-in-fact of the undersigned, with full power in each to act without the
others, for and in the name of the undersigned as such Director to sign any and
all Registration Statements and amendments thereto, including Post-Effective
Amendments, filed with the Securities and Exchange Commission relating to
registration under the Securities Act of 1933 of interests in or Capital Stock
of Roto-Rooter, Inc. to be offered and sold pursuant to its 2002 Stock Incentive
Plan.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
this 19th day of September, 2003.
/s/ Thomas C. Hutton
---------------------------
Thomas C. Hutton
E-11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, a Director of
Roto-Rooter, Inc., hereby constitutes and appoints Kevin J. McNamara, Timothy S.
O'Toole, Arthur V. Tucker and Naomi C. Dallob the true and lawful
attorneys-in-fact of the undersigned, with full power in each to act without the
others, for and in the name of the undersigned as such Director to sign any and
all Registration Statements and amendments thereto, including Post-Effective
Amendments, filed with the Securities and Exchange Commission relating to
registration under the Securities Act of 1933 of interests in or Capital Stock
of Roto-Rooter, Inc. to be offered and sold pursuant to its 2002 Stock Incentive
Plan.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
this 18th day of September, 2003.
/s/ Donald E. Saunders
-----------------------------------
Donald E. Saunders
E-12
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, a Director of
Roto-Rooter, Inc., hereby constitutes and appoints Kevin J. McNamara, Timothy S.
O'Toole, Arthur V. Tucker and Naomi C. Dallob the true and lawful
attorneys-in-fact of the undersigned, with full power in each to act without the
others, for and in the name of the undersigned as such Director to sign any and
all Registration Statements and amendments thereto, including Post-Effective
Amendments, filed with the Securities and Exchange Commission relating to
registration under the Securities Act of 1933 of interests in or Capital Stock
of Roto-Rooter, Inc. to be offered and sold pursuant to its 2002 Stock Incentive
Plan.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
this 18th day of September, 2003.
/s/ George J. Walsh III
---------------------------
George J. Walsh III
E-13
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, a Director of
Roto-Rooter, Inc., hereby constitutes and appoints Kevin J. McNamara, Timothy S.
O'Toole, Arthur V. Tucker and Naomi C. Dallob the true and lawful
attorneys-in-fact of the undersigned, with full power in each to act without the
others, for and in the name of the undersigned as such Director to sign any and
all Registration Statements and amendments thereto, including Post-Effective
Amendments, filed with the Securities and Exchange Commission relating to
registration under the Securities Act of 1933 of interests in or Capital Stock
of Roto-Rooter, Inc. to be offered and sold pursuant to its 2002 Stock Incentive
Plan.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and seal
this 22nd day of September, 2003.
/s/ Frank E. Wood
---------------------------
Frank E. Wood
E-14
