As filed with the Securities and Exchange Commission on May 7, 2004
Registration No. (333- )
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
ROTO-ROOTER, INC.
(Exact name of registrant as specified in its charter)
Delaware 7600 31-0791746
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
2600 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4726
(513) 762-6900
(Address, including zip code, and telephone number, including
area code, of Registrants' principal executive offices)
Naomi C. Dallob
Vice President and Secretary
2600 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4726
(Name, address, including zip code, and telephone number, including
area code, of agent for service for Registrants)
____________________
Copies to:
Thomas E. Dunn
Cravath, Swaine & Moore LLP
Worldwide Plaza, 825 Eighth Avenue
New York, New York 10019
(212) 474-1000
____________________
Approximate date of commencement of proposed sale of the securities
to the public: As soon as practicable after the effective time 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, as amended, other than securities offered only in
connection with dividend or interest reinvestment plans, please 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 number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [X]
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED MAXIMUM
TITLE OF EACH CLASS OF NUMBERS OF SHARES MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED TO BE REGISTERED PRICE PER UNIT (1) PRICE (2) REGISTRATION FEE
Capital Stock, par value $1.00 per
share 2,000,000 $49.58 $99,160,000 $12,563.72
Total.......................... 2,000,000 $49.58 $99,160,000 $12,563.72
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act of
1933, as amended, based on the average of the high and low trading prices of $49.90 and $49.25 of the capital stock on May 3,
2004.
(2) The proposed maximum aggregate offering price has been estimated solely to calculate the registration fee.
____________________
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter
become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a), may determine.
____________________
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchage Commission is effective. This prospectus is not an
offer to sell these securities, and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 7, 2004
PROSPECTUS
ROTO-ROOTER, INC.
2,000,000 SHARES
CAPITAL STOCK
We are registering 2,000,000 shares of capital stock for offer and
sale from time to time by the selling stockholders named in this prospectus.
We will not receive any of the proceeds from the sale of these shares of
capital stock.
This prospectus should be read in conjunction with the documents
incorporated by reference herein.
Our capital stock is listed on the New York Stock Exchange under the
symbol "RRR."
Investing in our capital stock involves risks. See "Risk Factors"
beginning on page 4, and the risk factors incorporated herein by reference,
for a discussion of the risks you should consider before investing in our
capital stock.
The shares covered by this prospectus may be offered for sale from
time to time on the New York Stock Exchange or otherwise, at prices then
obtainable. The selling stockholders listed in this prospectus may sell any,
all or none of the shares offered by this prospectus. See "Plan of
Distribution" beginning on page 11 for a discussion of these and other
distribution matters.
____________________
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
____________________
The date of this prospectus is May [ ], 2004.
TABLE OF CONTENTS
PAGE
Summary........................................................................2
Risk Factors...................................................................4
Note on Forward-Looking Statements.............................................6
Use of Proceeds................................................................7
Selling Stockholders...........................................................7
Description of Capital Stock...................................................9
Plan of Distribution..........................................................11
Legal Matters.................................................................13
Experts.......................................................................13
Where You Can Find More Information...........................................13
Incorporation By Reference....................................................13
Market Data...................................................................14
SUMMARY
The following summary contains basic information about the company and
this offering. Because this is a summary, it necessarily does not contain all
the information that may be important to you. For a more complete
understanding of the offering, we encourage you to carefully read this entire
prospectus, including the "Risk Factors" section, and the documents
incorporated by reference herein. When we refer to "Roto-Rooter," "the
company," "we," "our" and "us" in this prospectus we mean Roto-Rooter, Inc.
and its subsidiaries unless the context indicates otherwise.
BUSINESS OF THE COMPANY
We are involved in three lines of business: plumbing and drain cleaning
services, heating/air-conditioning repair, and hospice care. We entered the
hospice care business when we acquired the remaining 63% of Vitas Healthcare
Corporation ("Vitas") that we did not previously own on February 24, 2004.
We believe we are the largest provider of plumbing and drain cleaning
services in North America, providing repair and maintenance services to
residential and commercial accounts. We operate through more than 100
company-owned branches and independent contractors and 500 franchisees. We
offer services to more than 90% of the U.S. population and approximately 55%
of the Canadian population. We also have licensed master franchisees in
Australia, China, Indonesia, Japan, Mexico, the Philippines and the United
Kingdom.
Our Service America business provides residential and commercial
appliance and heating/air-conditioning repair, maintenance and replacement
services. It also sells air conditioning equipment and duct cleaning services.
Vitas is the nation's largest provider of hospice services for patients
with severe, life-limiting illnesses. This type of care is aimed at making the
terminally ill patient's final days as comfortable and pain free as possible.
Hospice care is typically available to patients who have been initially
certified as terminally ill (i.e., a prognosis of six months or less).
Vitas' hospice operations began in South Florida in 1978 and Vitas was
incorporated as a for-profit corporation in 1983. Today, Vitas provides a
comprehensive range of hospice services through 25 operating programs covering
many of the large population areas in the U.S., including Florida, California,
Texas and Illinois. Vitas has over 6,000 employees including approximately
2,400 nurses and 1,500 home health aides.
We are a holding company and derive all of our operating income from our
subsidiaries.
THE OFFERING
Securities Offered.................. 2,000,000 shares of capital stock of Roto-Rooter.
Use of Proceeds..................... The Company will not receive any proceeds from sales of capital
stock by the selling stockholders pursuant to this prospectus.
Capital Stock....................... Our capital stock is listed on the New York Stock Exchange under the
symbol "RRR."
2
OUR ADDRESS
Our executive offices are located at 225 E. Fifth Street, Cincinnati,
Ohio 45202 and our telephone number is (513) 762-6900. Our website is located
at http://www.rotorooterinc.com. The information on our website is not part of
this prospectus.
3
RISK FACTORS
You should carefully consider the following risk factors and all of the
information and the risk factors set forth in this prospectus and incorporated
by reference herein before deciding to invest in the capital stock. The risks
described below and incorporated by reference herein are not the only ones
facing our company. Additional risks not now know to us or that we currently
deem immaterial may also impair our business operations.
RISKS RELATED TO OUR CAPITAL STOCK
OUR STOCK PRICE MAY FLUCTUATE SIGNIFICANTLY.
The market price of our capital stock could fluctuate significantly in
response to variations in quarterly operating results and other factors, such
as:
o changes in our business, operations or prospects;
o developments in our relationships with our customers;
o announcements of new products or services by us or by our
competitors;
o announcement or completion of acquisitions by us or by our
competitors;
o changes in existing or adoption of additional government
regulations;
o unfavorable or reduced analyst coverage; and
o prevailing domestic and international market and economic
conditions.
In addition, the stock market has experienced significant price
fluctuations in recent years. Many companies experienced material fluctuations
in their stock price that were unrelated to their operating performance. Broad
market fluctuations, general economic conditions and specific conditions in
the industries in which we operate may adversely affect the market price of
our capital stock.
LIMITED TRADING VOLUME OF OUR CAPITAL STOCK MAY CONTRIBUTE TO ITS PRICE
VOLATILITY.
Our capital stock is traded on the New York Stock Exchange, or NYSE.
During the year ended December 31, 2003, the average daily trading volume for
our capital stock as reported by the NYSE was approximately 41,475 shares. We
are uncertain whether a more active trading market in our capital stock will
develop. Also, many investment banks no longer find it profitable to provide
securities research on small-cap and mid-cap companies. If analysts were to
discontinue coverage of our capital stock, our trading volume may be further
reduced. As a result, relatively small trades may have a significant impact on
the market price of our capital stock, which could increase the volatility and
depress the price of our capital stock.
FUTURE SALES OF OUR CAPITAL STOCK MAY CAUSE OUR STOCK PRICE TO DECLINE.
In the future, we may sell additional shares of our capital stock in
public or private offerings, and we may also issue additional shares of our
capital stock to finance future acquisitions. Shares of our capital stock are
also available for future sale pursuant to stock
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options that we have granted to our employees, and in the future we may grant
additional stock options to our employees. Sales of substantial amounts of our
capital stock, or the perception that such sales could occur, may adversely
affect prevailing market prices for shares of our capital stock and could
impair our ability to raise capital through future offerings.
WE ARE SUBJECT TO CERTAIN ANTI-TAKEOVER STATUTES THAT MIGHT MAKE IT MORE
DIFFICULT TO EFFECT A CHANGE IN CONTROL OF THE COMPANY.
We are subject to the anti-takeover provisions of Section 203 of the
Delaware General Corporation Law, which prohibits us from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an
interested stockholder, unless the business combination is approved in a
prescribed manner. The application of Section 203 could have the effect of
delaying or preventing a change of control that could be advantageous to
stockholders.
5
NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements within the meaning of
the federal securities laws. These forward-looking statements generally can be
identified by use of statements that include words such as "anticipate,"
"estimate," "expect," "project," "intend," "plan," "believe" and other words
and terms of similar meaning, although not all forward-looking statements
contain such words. Statements that describe our objectives, plans or goals
are also forward-looking statements. These forward-looking statements are
subject to risks and uncertainties which could cause actual results to differ
materially from those currently anticipated. Factors that could materially
affect these forward-looking statements can be found in our periodic reports
filed with the Securities and Exchange Commission (the "SEC") and herein under
the heading "Risk Factors." Potential investors and other readers are urged to
consider these factors carefully in evaluating the forward-looking statements
and are cautioned not to place undue reliance on these forward-looking
statements. The forward-looking statements included in this prospectus are
made only as of the date of this prospectus, and we undertake no obligation to
publicly update these forward-looking statements to reflect new information,
future events or otherwise. In light of these risks, uncertainties and
assumptions, the forward-looking events might or might not occur. We cannot
assure you that projected results or events will be achieved.
6
USE OF PROCEEDS
The Company will not receive any proceeds from sales of capital stock by
the selling stockholders pursuant to this prospectus.
SELLING STOCKHOLDERS
The following table sets forth for each selling stockholder, to the
extent known by us, the amount of our capital stock beneficially owned by each
selling stockholder prior to the offering, the amount of our capital stock
being offered in the offering and the percentage of outstanding capital stock
to be owned after completion of the offering based upon the number of shares
outstanding at March 31, 2004. This table may be expanded or supplemented in
prospectus supplements as new information becomes available to us. All
information contained in the table below is based upon information provided to
us by the selling stockholders, and we have not independently verified this
information. None of the selling stockholders or any of its affiliates,
officers, directors or principal equity holders has held any position or
office or has had any material relationship with us or any of our predecessors
or affiliates within the past three years.
Only selling stockholders identified as beneficially owning the capital
stock set forth opposite each such selling stockholder's name in the table on
the effective date of the registration statement, of which this prospectus
forms a part, may sell such securities pursuant to the registration statement.
Prior to any use of this prospectus in connection with an offering of the
capital stock, the registration statement of which this prospectus forms a
part will be amended by a post-effective amendment to set forth the name and
number of shares of capital stock to be offered. The prospectus, which will be
a part of such a post-effective amendment, will also disclose whether any
selling stockholder selling in connection with such prospectus has held any
position or office with or otherwise has had a material relationship with us
or any of our predecessors or affiliates during the three years prior to the
date of the prospectus if such information has not been disclosed herein.
To the extent that any of the listed selling stockholders are
broker-dealers, they are deemed by the SEC to be "underwriters" within the
meaning of the Securities Act. With respect to selling stockholders that are
affiliates of broker-dealers, we believe that such entities acquired their
shares of capital stock in the ordinary course of business and at the time of
the purchase of such shares such selling stockholders had no agreements or
understandings, directly or indirectly, with any person to distribute those
securities. To the extent that we determine that such entities did not acquire
shares in the ordinary course of business or did have such an agreement or
understanding, we will file a post-effective amendment to the registration
statement of which this prospectus is a part to designate such affiliate as an
"underwriter" within the meaning of the Securities Act.
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NUMBER OF SHARES
OF CAPITAL PERCENTAGE OF
STOCK BENEFICIAL
BENEFICIALLY NUMBER OF SHARES OWNERSHIP AFTER
OWNED BEFORE OF CAPITAL STOCK COMPLETION
NAME OF SELLING STOCKHOLDER OFFERING BEING OFFERED OF OFFERING
- -------------------------------------------- ------------------ ----------------- ----------------
Perry Principals Investments LLC 520,000 520,000 *
York Capital Management, L.P. 40,760 38,042 *
York Investment Limited 129,340 121,558 *
York Select, L.P. 34,794 32,474 *
York Select Unit Trust 22,206 20,726 *
York Distressed Opportunities Fund, L.P. 60,000 56,000 *
York Global Value Partners, L.P. 12,000 11,200 *
DE Shaw Laminar Portfolios, LLC 220,000 220,000 *
Mackay Shields Long/Short Fund, L.P. 30,000 30,000 *
Mackay Shields Long/Short Fund (Master) LP 150,000 150,000 *
Quantum Partners, LDC 100,000 100,000 *
Silver Oak Capital, L.L.C. 180,000 180,000 *
Drawbridge Special Opportunities Fund LP 90,000 90,000 *
Drawbridge Special Opportunities Fund Ltd. 60,000 60,000 *
Drawbridge Global Macro Master Fund Ltd. 70,000 70,000 *
Massachusetts Mutual Life Insurance Company 149,500 149,500 *
MassMutual Corporate Investors 20,000 20,000 *
MassMutual Participation Investors 10,500 10,500 *
Event Partners Debt Acquisition, LLC 120,000 120,000 *
* Less than one percent
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DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is only a summary of the
detailed provisions of our certificate of incorporation, as amended, and
by-laws, as amended. These statements do not purport to be complete, or to
give full effect to the provisions of statutory or common law, and are subject
to, and are qualified in their entirety by reference to, the terms of our
certificate of incorporation and by-laws. We encourage you to read our
certificate of incorporation and by-laws which have been filed with the SEC
and are incorporated by reference in this prospectus for a more complete
description.
GENERAL
Our authorized capital stock consists of 15,000,000 shares of capital
stock, par value $1.00 per share. Our certificate of incorporation does not
authorize the issuance of shares of preferred stock. As of March 31, 2004, we
had 12,154,633 shares of capital stock outstanding. In addition, as of March
31, 2004, an aggregate of 1,013,776 shares of our capital stock were issuable
upon the exercise of outstanding options and 67,302 shares were reserved for
issuance under our stock incentive plans. As of March 31, 2004, 378,533 shares
of our capital stock were reserved for conversion of our trust preferred
securities.
RIGHTS OF HOLDERS OF OUR CAPITAL STOCK
Stockholders are entitled to one vote for each share of our capital stock
held of record on all matters on which stockholders are entitled or permitted
to vote. Our capital stock does not have cumulative voting rights in the
election of directors. As a result, holders of a majority of the shares of our
capital stock voting for the election of directors can elect all the directors
standing for election. Holders of our capital stock are entitled to receive
dividends out of legally available funds when and if declared from time to
time by our Board of Directors. In the event of our liquidation, dissolution
or winding up, the holders of our capital stock will be entitled to share
ratably in all assets remaining after payment of liabilities. Our capital
stock has no preemptive, subscription or conversion rights, and there are no
redemption or sinking fund provisions in our certificate of incorporation. The
outstanding shares of our capital stock are fully paid and nonassessable.
CORPORATE GOVERNANCE PROVISIONS OF OUR BY-LAWS
Our by-laws provide that stockholders may act by written consent without
a meeting if consents in writing, setting forth the action taken, are signed
by the holders of record of shares having not less than the minimum voting
power that would be necessary to take such action at a meeting at which all
shares entitled to vote thereon were present and voted. Our by-laws provide
that special meetings of stockholders may be called at any time by the
Chairman, President or the Secretary of the Company or upon the written
request of a majority of the Board of Directors or of the holders of record
shares having a majority of the voting power of the capital stock of the
Company then entitled to vote for the election of directors. Our by-laws
provide that the number of directors will be fixed from time to time by
resolution of the Board of Directors or, in the absence thereof, will be the
number of directors elected at the preceding annual meeting of the
stockholders. Our by-laws provide that the Board of Directors must constitute
no fewer than 3 and no more than 40 directors. Our Board of Directors
currently consists of 11 directors.
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SECTION 203 OF THE DELAWARE GENERAL CORPORATION LAW
We are a Delaware corporation that is subject to Section 203 of the
Delaware General Corporation Law. Section 203 provides in general that a
stockholder acquiring more than 15% of the outstanding voting stock of a
corporation subject to Section 203 but less than 85% of such stock may not
engage in a Business Combination, as defined in Section 203, with the
corporation for a period of three years from the date on which that
stockholder became an Interested Stockholder, as defined in Section 203,
unless (1) prior to such date the corporation's board of directors approved
either the Business Combination or the transaction in which the stockholder
became an Interested Stockholder or (2) the Business Combination is approved
by the corporation's board of directors and authorized by the holders of at
least 66% of the outstanding voting stock of the corporation not owned by the
Interested Stockholder. A "Business Combination" includes a merger, asset sale
or other transaction resulting in a financial benefit to a stockholder. A
Delaware corporation may "opt out" of Section 203 with an express provision in
its original certificate of incorporation or an express provision in its
certificate of incorporation or by-laws resulting from amendments approved by
holders of at least a majority of a corporation's outstanding voting shares.
We have not "opted out" of the provisions of Section 203.
LIMITATIONS ON LIABILITY AND INDEMNIFICATION OF OFFICERS AND DIRECTORS
Our certificate of incorporation provides that to the fullest extent
permitted by the Delaware General Corporation Law, no director will be liable
to us or our stockholders for monetary damages for breach of fiduciary duty as
a director. Under the Delaware General Corporation Law, liability of a
director may not be limited:
o for any breach of the director's duty of loyalty to us or our
stockholders,
o for acts or omissions not in good faith or that involve intentional
misconduct or knowing violation of law,
o in respect of certain unlawful dividend payments or stock
redemptions or repurchases, and
o for any transaction from which the director derives an improper
personal benefit.
The effect of this provision of our certificate of incorporation is to
eliminate our rights and the rights of our stockholders to recover monetary
damages against a director for breach of the fiduciary duty of care as a
director, including breaches resulting from negligent or grossly negligent
behavior, except in the situations described above. This provision does not
limit or eliminate our rights or the rights of any stockholder to seek
non-monetary relief such as an injunction or rescission in the event of a
breach of a director's duty of care. In addition, our by-laws provide that we
will indemnify our directors, officers, employees and agents to the fullest
extent permitted by the Delaware General Corporation Law. We may purchase and
maintain insurance or furnish similar protection on behalf of any officer or
director against any liability asserted against the officer or director and
incurred by the officer or director in such capacity, or arising out of the
status, as an officer or director.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our capital stock is Wells Fargo
Bank, N.A.
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PLAN OF DISTRIBUTION
The selling stockholders, or their pledgees, donees, transferees, or any
of their successors in interest selling shares received from a named selling
stockholder as a gift, partnership distribution or other non-sale-related
transfer after the date of this prospectus (all of whom may be selling
stockholders), may sell the shares of capital stock from time to time after
the date of this prospectus on any stock exchange or automated interdealer
quotation system on which the capital stock is listed, in the over-the-counter
market, in privately negotiated transactions or otherwise, at fixed prices
that may be changed, at market prices prevailing at the time of sale, at
prices related to prevailing market prices or at prices otherwise negotiated.
The selling stockholders may sell the shares of capital stock by one or more
of the following methods, without limitation:
(a) ordinary brokerage transactions (including block trades) and
transactions in which the broker solicits purchases;
(b) private sales or private transactions;
(c) one or more underwritten offerings on a firm commitment or best
efforts basis; and
(d) a combination of any of these methods of sale or any other legally
available means, whether or not described in this prospectus.
At the time a particular offering of shares is made hereunder, to the
extent required by Rule 424 under the Securities Act of 1933, we will file a
prospectus supplement setting forth:
(a) the number of shares involved;
(b) the names of any underwriters, dealers or agents;
(c) the price at which the shares are being offered or purchased;
(d) any commissions or discounts or concessions allowed to
broker-dealers;
(e) any discounts, commissions or other items constituting compensation
from the selling shareholder; and
(f) any other facts material to the transaction.
In connection with sales of the shares of capital stock the selling
stockholders may enter into hedging transactions with broker-dealers only to
the extent permitted by the Securities Act and any applicable securities laws
of any state of the United States. These broker-dealers may in turn engage in
short sales of the shares of capital stock and deliver shares of capital stock
to close out such short positions, or loan or pledge shares of capital stock
to broker-dealers that may in turn sell such securities. The selling
stockholders may pledge or grant a security interest in some or all of the
shares of capital stock that it owns and, if it defaults in the performance of
its secured obligations, the pledgees or secured parties may offer and sell
the shares of capital stock from time to time pursuant to this prospectus. The
selling stockholders may also transfer and donate shares of capital stock in
other circumstances, in which case the transferees, donees, pledgees or other
successors in interest will be selling stockholders for the purposes of this
prospectus.
11
To our knowledge, there are currently no plans, arrangements or
understanding between any selling stockholders and any underwriters,
broker-dealer or agent regarding the sale of the shares of capital stock by
the selling stockholders.
The shares of capital stock registered hereby were issued and sold on
February 24, 2004 in transactions exempt from the registration requirements of
the Securities Act pursuant to Rule 144A under the Securities Act. We agreed
to register the shares under the Securities Act and to keep the registration
statement of which this prospectus is a part effective until the earlier of
the date on which the selling stockholders have sold all of the shares, the
shares covered hereby are no longer outstanding or the holders are entitled to
sell their shares under Rule 144 under the Securities Act.
Pursuant to the registration rights agreement, we have agreed to
indemnify in certain circumstances the selling stockholders and any brokers,
dealers and agents who may be deemed to be underwriters, if any, of the shares
covered by the registration statement, against certain liabilities, including
liabilities under the Securities Act. The selling stockholders have agreed to
indemnify us in certain circumstances against certain liabilities, including
liabilities under the Securities Act. We have also agreed to pay certain
expenses in connection with this offering, including, in certain
circumstances, the fees and expenses of counsel to the selling stockholders,
but not including underwriting discounts, concessions, commissions or fees of
the selling stockholders.
The selling stockholders and any other person participating in such
distribution will be subject to the Exchange Act rules, including, without
limitation, Regulation M, which may limit the timing of purchases and sales of
any of the shares of capital stock by the selling stockholders and any such
other person. In addition, Regulation M of the Exchange Act may restrict the
ability of any person engaged in the distribution of the shares of capital
stock to engage in market-making activities with respect to the shares of
capital stock being distributed for a period of up to five business days prior
to the commencement of distribution. This may affect the marketability of the
shares of capital stock and the ability of any person or entity to engage in
market-making activities with respect to the shares of capital stock.
The Company will not receive any proceeds from sales of any shares by the
selling stockholders.
Because we can not assure you that the selling stockholders will sell all
or any portion of the shares offered hereby, we cannot estimate how many
shares of capital stock that the selling stockholders will hold upon
consummation of any sale.
We may suspend the use of this prospectus by the selling stockholder
under certain circumstances.
Any capital stock sold by a selling stockholder pursuant to a prospectus
supplement will be listed on the New York Stock Exchange, subject to official
notice of issuance.
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LEGAL MATTERS
The validity of the shares of capital stock will be passed upon for us by
Naomi C. Dallob, Esq., our Vice President and Secretary.
EXPERTS
The financial statements incorporated in this prospectus by reference to
the Annual Report on Form 10-K for the year ended December 31, 2003 have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The consolidated financial statements of Vitas as of September 30, 2003
and 2002, and for each of the three years in the period ended September 30,
2003, incorporated by reference from our Form 8-K/A filed on February 23, 2004
with the SEC, have been audited by Ernst & Young LLP, independent auditors, as
stated in their report thereon included therein and are included in reliance
upon such report given on the authority of such firm as experts in accounting
and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 with
respect to the capital stock offered in this prospectus. This prospectus does
not contain all of the information set forth in the registration statement and
the exhibits to that registration statement. For further information with
respect to us and the capital stock, we refer you to the registration
statement and its exhibits. We also file annual, quarterly and special
reports, proxy statements and other information with the SEC. You may read and
copy any document we file at the Public Reference Room of the SEC, 450 Fifth
Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330
for further information on the public reference rooms. Our SEC filings are
also available to the public from the SEC's website at http://www.sec.gov and
on our website at http://www.rotorooterinc.com. Reports and other information
concerning us can also be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005, phone (212) 656-5060. Our
capital stock is listed and traded on the New York Stock Exchange under the
trading symbol "RRR." With the exception of the documents we file with the
SEC, the information contained on our website is not incorporated by reference
in this prospectus and you should not consider it a part of this prospectus.
INCORPORATION BY REFERENCE
We are incorporating by reference the information that we file with the
SEC, which means that we are disclosing important information to you in those
documents. The information incorporated by reference is an important part of
this prospectus, and the information that we subsequently file with the SEC
will automatically update and supercede information in this prospectus and in
our other filings with the SEC. We incorporate by reference the documents
listed below, which we have already filed with the SEC, and any future filings
we make with the
13
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 (other than information furnished pursuant to Item 9 or Item 12 of any
Current Report on Form 8-K). We are not, however, incorporating by reference
any documents or portions thereof, whether specifically listed below or filed
in the future, that are not deemed "filed" with the SEC, including any
information furnished pursuant to Items 9 or 12 of Form 8-K.
o Annual Report on Form 10-K for the year ended December 31, 2003
filed on March 12, 2004; and
o Amended Current Report on Form 8-K/A filed on February 23, 2004 and
Current Report on Form 8-K filed on February 24, 2004.
Any statement contained in this prospectus, or in a document all or a
portion of which is incorporated by reference in this prospectus, will be
deemed to be modified or superceded for purposes of this prospectus to the
extent that a statement contained in this prospectus is modified or supercedes
the statement. Any such statement or document so modified or superceded will
not be deemed, except as so modified or superceded, to constitute a part of
this prospectus.
You may request a copy of any of our filings with the SEC, or any of the
agreements or other documents that constitute exhibits to those filings, at no
cost, by writing or telephoning us at the following address or phone number:
Roto-Rooter, Inc.
c/o Investor Relations
2600 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4726
Telephone: (800) 224-3622 or (513) 762-6463
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE ELSE TO PROVIDE
YOU WITH ADDITIONAL OR DIFFERENT INFORMATION. YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE
ON THE FRONT COVER OF THIS PROSPECTUS.
MARKET DATA
The market data and certain industry forecasts contained or incorporated
by reference in this prospectus are based on internal surveys, market
research, publicly available information, industry publications or good faith
estimates of our management. Industry publications generally state that the
information contained therein has been obtained from sources believed to be
reliable, but that the accuracy and completeness of such information is not
guaranteed. Similarly, internal surveys, industry forecasts and market
research, while believed to be reliable, have not been independently verified,
and we make no representation as to the accuracy of such information.
14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following statement sets forth the estimated amounts of expenses,
other than underwriting discounts, to be borne by the registrant in connection
with the distribution of the offered securities.
SEC registration fee................................. $ 12,563.72
Printing and engraving expenses...................... 10,000.00
Accounting fees and expenses......................... 35,000.00
Legal fees and expenses.............................. 50,000.00
Miscellaneous expenses............................... 436.28
Total expenses....................................... $ 108,000.00
Item 15. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law provides, in
general, that a corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation), because the person is or was a director or officer of the
corporation. Such indemnity may be against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding, if
the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and if, with
respect to any criminal action or proceeding, the person did not have
reasonable cause to believe the person's conduct was unlawful.
Section 145(b) of the Delaware General Corporation Law provides, in
general, that a corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor because the person is or was a director or
officer of the corporation, against any expenses (including attorneys' fees)
actually and reasonably incurred by the person in connection with the defense
or settlement of such action or suit if the person acted in good faith and in
a manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnify for such expenses which the Court of Chancery
or such other court shall deem proper.
Section 145(g) of the Delaware General Corporation Law provides, in
general, that a corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
corporation against any liability asserted against the person in any such
capacity, or arising out of the person's status as such, whether or not the
corporation would have the power to indemnify the person against such
liability under the provisions of the law.
II-1
The certificate of incorporation and by-laws, as amended, of the
registrant provide that (a) the registrant shall indemnify to the full extent
permitted by law any person made, or threatened to be made, a party to any
claim, action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that he is or was a director, officer or
employee of the registrant serving at the registrant's request as a director
or officer of another corporation or of a partnership, joint venture, trust or
other enterprise and (b) the registrant shall pay the expenses, including
attorney's fees, incurred by a director or officer in defending or
investigating a threatened or pending claim, action, suit or proceeding, in
advance of the final disposition of such claim, action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount by the registrant. The certificate of incorporation also
provides that, to the extent permitted by law, the directors of the registrant
shall have no liability to the registrant or its stockholder for monetary
damages for breach of fiduciary duty as a director.
The registrant maintains policies of insurance under which the
registrant's directors and officers are insured, within the limits and subject
to the limitations of the policies, against certain expenses in connection
with the defense of actions, suits or proceedings, and certain liabilities
which might be imposed as a result of such actions, suits or proceedings, to
which they are parties by reason of being or having been such directors or
officers.
The foregoing statements are subject to the detailed provisions of
Section 145 of the Delaware General Corporation Law and the certificate of
incorporation and by-laws of Roto-Rooter, Inc.
Item 16. Exhibits
3.1 -- Certificate of Incorporation of Chemed Corporation*
3.2 -- Certificate of Amendment to Certificate of Incorporation**
3.3 -- By-laws of Chemed Corporation***
4 -- Specimen of certificate representing Roto-Rooter, Inc.'s
capital stock, par value $1.00 per share
5 -- Opinion of Naomi C. Dallob, Esq.
23.1 -- Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 -- Consent of Ernst & Young LLP, Independent Auditors
23.3 -- Consent of Counsel (included in Exhibit 5)
24.1 -- Powers of Attorney related to Roto-Rooter, Inc.
* Incorporated by reference to the Registration Statement on Form S-3
previously filed by Roto-Rooter, Inc. on November 26, 1991
(Registration No. 33-44177).
** Incorporated by reference to the Registration Statement on Form S-8
previously filed by Roto-Rooter, Inc. on September 25, 2003
(Registration No. 333-109104)
*** Incorporated by reference to the annual report on Form 10-K for the
fiscal year 2000 previously filed by Roto-Rooter, Inc.
II-2
Item 17. Undertakings
A. Undertaking Regarding Rule 415 Offering
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information in the registration statement.
To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (i) and (ii) do not
apply if the information required to be included in a
post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
(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.
B. Undertaking Regarding Filings Incorporating Subsequent Exchange Act
Documents by Reference
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit 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.
C. Undertaking in Respect of Indemnification
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions described in Item 15 above, or
otherwise, the registrant has been informed that in the opinion of the SEC
such indemnification is against public policy as expressed in the Securities
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 officer,
director 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 of 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 of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 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 May 7,
2004.
ROTO-ROOTER, INC.
By:
/s/ Kevin J. McNamara
----------------------------
Name: Kevin J. McNamara
Title: President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed on May 7, 2004 by the following
persons in the capacities indicated.
Signatures Title
- --------------------------------- ------------------------------------------
/s/ Kevin J. McNamara President, Chief Executive Officer and
- --------------------------------- Director
(Kevin J. McNamara) (principal executive officer)
/s/ David P. Williams Vice President and Chief Financial Officer
- --------------------------------- (principal financial officer)
(David P. Williams)
/s/ Arthur V. Tucker Vice President and Controller (principal
- --------------------------------- accounting officer)
(Arthur V. Tucker)
*
- --------------------------------- Director
(Edward L. Hutton)
*
- --------------------------------- Director
(Charles H. Erhart, Jr.)
*
- --------------------------------- Director
(Joel F. Gemunder)
*
- --------------------------------- Director
(Thomas C. Hutton)
*
- --------------------------------- Director
(Sandra E. Laney)
*
- --------------------------------- Director
(Timothy S. O'Toole)
*
- --------------------------------- Director
(Donald E. Saunders)
II-5
Signatures Title
- --------------------------------- ------------------------------------------
*
- --------------------------------- Director
(George J. Walsh III)
*
- --------------------------------- Director
(Frank E. Wood)
*By:
/s/ Naomi C. Dallob
- ---------------------------------
(Naomi C. Dallob
Attorney-in-Fact)
II-6
EXHIBITS
3.1 -- Certificate of Incorporation of Chemed Corporation*
3.2 -- Certificate of Amendment to Certificate of Incorporation**
3.3 -- By-laws of Chemed Corporation***
4 -- Specimen of certificate representing Roto-Rooter, Inc.'s
capital stock, par value $1.00 per share
5 -- Opinion of Naomi C. Dallob, Esq.
23.1 -- Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 -- Consent of Ernst & Young LLP, Independent Auditors
23.3 -- Consent of Counsel (included in Exhibit 5)
24.1 -- Powers of Attorney related to Roto-Rooter, Inc.
* Incorporated by reference to the Registration Statement on Form S-3
previously filed by Roto-Rooter, Inc. on November 26, 1991 (Registration
No. 33-44177).
** Incorporated by reference to the Registration Statement on Form S-8
previously filed by Roto-Rooter, Inc. on September 25, 2003 (Registration
No. 333-109104)
*** Incorporated by reference to the annual report on Form 10-K for the
fiscal year 2000 previously filed by Roto-Rooter, Inc.
II-7
Exhibit 4
NUMBER
RR
CAPITAL STOCK CAPITAL STOCK
PAR VALUE $1 PER SHARE PAR VALUE $1 PER SHARE
[LOGO]
[ILLUSTRATION] [ILLUSTRATION]
ROTO- SHARES
ROOTER
INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE
SEE REVERSE FOR
CERTAIN DEFINITIONS
THIS CERTIFICATE IS TRANSFERABLE
IN THE CITY OF NEW YORK, NEW YORK,
OR IN SOUTH SAINT PAUL, MINNESOTA CUSIP 778787 10 1
ROTO-ROOTER, INC.
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF CAPITAL STOCK, PAR VALUE $1 PER SHARE, OF
ROTO-ROOTER, INC., transferable on the books of the Corporation in person or
by duly authorized attorney upon surrender of this Certificate properly
endorsed. This Certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
Dated:
COUNTERSIGNED AND REGISTERED:
WELLS FARGO BANK MINNESOTA, N.A.
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE SECRETARY PRESIDENT AND
CHIEF EXECUTIVE OFFICER
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 UNIF GIFT MIN ACT.............Custodian................
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors
of survivorship and not as
tenants in common Act.................
(State)
Additional abbreviations may also be used though not in the above list.
For value received ____________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
_________________________________
| |
| |
________________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________ Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
______________________________________________________________________ Attorney
to transfer the said stock on the books of the within-named Corporation
with full power of substitution in the premises.
Dated ________________________
________________________________________________
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:
_______________________________________________________
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
May 5, 2004
Roto-Rooter, Inc.
2600 Chemed Center
255 East Fifth Street
Cincinnati, Ohio 45202-4726
Ladies and Gentlemen:
I have acted as counsel to Roto-Rooter, Inc. ("Roto-Rooter") in
connection with the filing of a Registration Statement on Form S-3 (the
"Registration Statement") to register under the Securities Act of 1933, as
amended, 2,000,000 shares of capital stock of Roto-Rooter (the "Shares").
In rendering my opinion, I have reviewed such certificates, documents,
corporate records and other instruments as in my judgment is necessary or
appropriate to enable me to render the opinions expressed below. In giving
this opinion, I am assuming the authenticity of all instruments presented to
me as originals, the conformity with the originals of all instruments
presented to me as copies and the genuineness of all signatures.
Based upon the foregoing, I am of the opinion that the Shares, when
issued in accordance with the terms of the Plan of Distribution described in
the Registration Statement, will be legally issued, fully paid and
non-assessable.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ NAOMI C. DALLOB
Naomi C. Dallob
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 5, 2004 relating to the
financial statements, which appears in the 2003 Annual Report to Shareholders,
which is incorporated by reference in Roto-Rooter, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 2003. We also consent to the
incorporation by reference herein of our report dated March 5, 2004 relating
to the financial statement schedule, which appears in such Annual Report on
Form 10-K. We also consent to the references to us under the heading "Experts"
in the prospectus constituting part of this Registration Statement.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Cincinnati, Ohio
May 7, 2004
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement on Form S-3 and related prospectus of Roto-Rooter,
Inc. for the registration of 2,000,000 shares of its capital stock and to the
incorporation by reference therein of our report dated November 10, 2003, with
respect to the consolidated financial statements of Vitas Healthcare
Corporation as of September 30, 2003 and 2002 and for each of the three years
in the period ended September 30, 2003, included in the Current Report on Form
8-K/A of Roto-Rooter, Inc. filed with the Securities and Exchange Commission
on February 23, 2004.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Miami, Florida
May 6, 2004
EXHIBIT 24.1
POWER OF ATTORNEY
Each of the undersigned directors and officers of Roto-Rooter, Inc.
hereby severally constitutes and appoints Naomi C. Dallob, as attorney-in-fact
for the undersigned, in any and all capacities, with full power of
substitution, to sign one or more registration statements on Form S-3 relating
to the capital stock (the "Securities") of Roto-Rooter, Inc. and any
amendments thereto (including any post-effective amendments) and any
subsequent registration statement filed by Roto-Rooter, Inc. pursuant to Rule
462(b) of the Securities Act of 1933 and to file the same with exhibits
thereto and other documents in connection therewith with the Securities and
Exchange Commission, granting unto said attorney-in-fact full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact may lawfully do or cause to be done by virtue
hereof.
SIGNATURES TITLE DATE
- -------------------------------- ------------------------- -----------------
/s/ Edward L. Hutton Director April 20, 2004
- --------------------------------
(Edward L. Hutton
/s/ Charles H. Erhart, Jr. Director April 21, 2004
- --------------------------------
(Charles H. Erhart, Jr.)
/s/ Joel F. Gemunder Director April 29, 2004
- --------------------------------
(Joel F. Gemunder)
/s/ Thomas C. Hutton Director April 21, 2004
- --------------------------------
(Thomas C. Hutton)
/s/ Sandra E. Laney Director April 21, 2004
- --------------------------------
(Sandra E. Laney)
/s/ Timothy S. O'Toole Director April 22, 2004
- --------------------------------
(Timothy S. O'Toole)
/s/ Donald E. Saunders Director April 23, 2004
- --------------------------------
(Donald E. Saunders)
/s/ George J. Walsh III Director April 22, 2004
- --------------------------------
(George J. Walsh III)
/s/ Frank E. Wood Director April 22, 2004
- --------------------------------
(Frank E. Wood)