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As filed with the Securities and Exchange Commission on June 14, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
EMERITUS CORPORATION
(Exact name of Registrant as specified in its charter)
Washington 91-1605464
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Market Place One
2003 Western Avenue, Suite 660
Seattle, Washington 98121
(Address of principal executive offices, including zip code)
EMERITUS CORPORATION 1995 STOCK INCENTIVE PLAN
EMERITUS CORPORATION 1995 STOCK OPTION PLAN FOR NONEMPLOYEE
DIRECTORS
(Full title of the plan)
Raymond R. Brandstrom
Chief Operating Officer
EMERITUS CORPORATION
Market Place One
2003 Western Avenue, Suite 660
Seattle, Washington 98121
(206) 443-4313
(Name, address and telephone number, including area code,
of agent for service)
---------------------------
Copy to:
Michael E. Stansbury
David K. Yao
PERKINS COIE
1201 Third Avenue, 40th Floor
Seattle, Washington 98101-3099
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Number to Be Offering Price Aggregate Offering Amount of
to Be Registered Registered Per Share(1) Price(1) Registration Fee
- ------------------------ ------------- ---------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, par value 1,250,000(2) $19.5625 $24,453,125 $8,432
$.0001 per share
</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating
the amount of the registration fee. The price per share is estimated to
be $19.5625 based on the average of the high ($19.625) and low ($19.5)
sales prices for the Common Stock on June 12, 1996, as reported by the
American Stock Exchange.
(2) Together with an indeterminate number of additional shares that may be
necessary to adjust the number of shares for issuance pursuant to the
1995 Stock Incentive Plan and 1995 Stock Option Plan for Nonemployee
Directors as the result of any future stock dividend, stock split,
spin-off, combination or exchange of shares, recapitalization, merger,
consolidation, distribution to stockholders other than a normal cash
dividend, or similar adjustment of the Registrant's outstanding Common
Stock.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995 filed with the Securities and Exchange Commission (the
"Commission"), which contains certified financial statements for the most recent
fiscal year for which such statements have been filed;
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") since the end of the fiscal year covered by the Annual Report referred to
in (a) above; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission on
October 17, 1995, under Section 12(b) of the Exchange Act, including any
amendments or reports filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment, which indicates that the securities offered hereby
have been sold or which deregisters the securities covered hereby then remaining
unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act authorize a court to award, or a corporation's board of
directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). Section 10 of the Registrant's Restated Bylaws provides for
indemnification of the Registrant's directors, officers, employees and agents to
the maximum extent permitted by Washington law. Certain of the directors of the
Registrant, who are affiliated with principal shareholders of the Registrant,
also may be indemnified by such shareholders against liability they may incur in
their capacity as a director of the Registrant, including pursuant to a
liability insurance policy for such purpose.
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Section 23B.08.320 of the Washington Business Corporation Act authorizes a
corporation to limit a director's liability to the corporation or its
shareholders for monetary damages for acts or omissions as a director, except in
certain circumstances involving intentional misconduct, self-dealing or illegal
corporate loans or distributions, or any transaction from which the director
personally receives a benefit in money, property or services to which the
director is not legally entitled. Article 8 of the Registrant's Restated
Articles of Incorporation contains provisions implementing, to the fullest
extent permitted by Washington law, such limitations on a director's liability
to the Registrant and its shareholders.
The Registrant has entered into an Indemnification Agreement with each of
its executive officers and directors in which the Registrant agrees to hold
harmless and indemnify the officer or director to the full extent permitted by
Washington law. In addition, the Registrant agrees to indemnify the officer or
director against any and all losses, claims, damages, liabilities or expenses
incurred in connection with any actual, pending or threatened action, suit,
claim or proceeding, whether civil, criminal, administrative or investigative
and whether formal or informal, in which the officer or director is, was or
becomes involved by reason of the fact that the officer or director is or was a
director, officer, employee or agent of the Registrant, or that being or having
been such a director, officer, employee or agent, such director is or was
serving at the request of the Registrant as a director, officer, employee,
trustee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit
plan, whether the basis of such proceeding is alleged action (or inaction) by
the officer or director in an official capacity as a director, officer,
employee, trustee or agent or in any other capacity while serving as a director,
officer, employee, trustee or agent. The officer or director is not indemnified
for any action, suit, claim or proceeding instituted by or at the direction of
the officer or director unless such action, suit, claim or proceeding is or was
authorized by the Registrant's Board of Directors or unless the action is to
enforce the provisions of the Indemnification Agreement.
No indemnity pursuant to the Indemnification Agreements shall be provided
by the Registrant on account of any suit in which a final, unappealable judgment
is rendered against an officer or director for an accounting of profits made
from the purchase or sale by the officer or director of securities of the
Registrant in violation of the provisions of Section 16(b) of the Exchange Act,
or for damages that have been paid directly to the officer or director by an
insurance carrier under a policy of directors' and officers' liability insurance
maintained by the Registrant.
The Registrant also maintains an insurance policy insuring its directors
and officers against liability for certain acts or omissions while acting in
their official capacities.
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ITEM 8. EXHIBITS
Exhibit
Number Description
- --------- --------------------------------------------------------------------
5.1 Opinion of Perkins Coie regarding legality of the Common Stock being
registered
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Perkins Coie (included in opinion filed as Exhibit 5.1)
24.1 Powers of Attorney (see page II-4)
99.1 Emeritus Corporation 1995 Stock Incentive Plan (Exhibit 10.1) (1)
99.2 Emeritus Corporation 1995 Stock Option Plan for Nonemployee
Directors (Exhibit 10.2) (2)
(1) Incorporated by reference to the indicated exhibit filed with the Company's
Registration Statement on Form S-1 (File No. 33-97508) declared effective
on November 21, 1995.
(2) Incorporated by reference to the indicated exhibit filed with the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995.
ITEM 9. 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; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
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provided, however, that paragraphs (1)(i) and (1)(ii) above 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
Exchange Act that are incorporated by reference in this Registration Statement.
(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.
B. 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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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. 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 Commission 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 of controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer of 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.
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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Seattle, State of Washington, on June 12, 1996.
EMERITUS CORPORATION
By /s/ Raymond R. Brandstrom
--------------------------------------
Raymond R. Brandstrom
President and Chief Operating Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Raymond R. Brandstrom and Kelly J. Price and each of them as attorneys-in-fact,
with full power of substitution, to execute in the name and on behalf of such
person, individually and in each capacity stated below, and to file, any and all
amendments to this Registration Statement, including any and all post-effective
amendments.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities indicated on June 12, 1996.
SIGNATURE TITLE
/s/ Daniel R. Baty Chairman, Chief Executive Officer and
-------------------------- Director (Principal Executive Officer)
Daniel R. Baty
/s/ Raymond R. Brandstrom President, Chief Operating Officer and
-------------------------- Director
Raymond R. Brandstrom
/s/ Kelly J. Price Director of Finance, Chief Financial
-------------------------- Officer and Secretary (Principal
Kelly J. Price Financial Officer)
/s/ James S. Keller Director of Accounting, Controller and
-------------------------- Chief Accounting Officer (Principal
James S. Keller Accounting Officer)
/s/ Tom A. Alberg Director
--------------------------
Tom A. Alberg
/s/ Patrick R. Carter Director
--------------------------
Patrick R. Carter
/s/ William E. Colson Director
--------------------------
William E. Colson
/s/ Motoharu Iue Director
--------------------------
Motoharu Iue
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INDEX TO EXHIBITS
Exhibit Sequentially
Number Description Numbered Page
- --------- ------------------------------------------- -------------
5.1 Opinion of Perkins Coie regarding legality of
the Common Stock being registered
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Perkins Coie (included in opinion
filed as Exhibit 5.1)
24.1 Powers of Attorney (see page II-4)
99.1 Emeritus Corporation 1995 Stock Incentive Plan
(Exhibit 10.1) (1)
99.2 Emeritus Corporation 1995 Stock Option Plan for
Nonemployee Directors (Exhibit 10.2) (2)
(1) Incorporated by reference to the indicated exhibit filed with the
Company's Registration Statement on Form S-1 (File No. 33-97508)
declared effective on November 21, 1995.
(2) Incorporated by reference to the indicated exhibit filed with the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995.
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EXHIBIT 5.1
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June 12, 1996
Emeritus Corporation
2003 Western Ave., Ste. 660
Seattle, WA 98121
RE: REGISTRATION ON FORM S-8 OF SHARES OF COMMON STOCK, PAR VALUE
$.0001 PER SHARE, OF EMERITUS CORPORATION (THE "COMPANY")
Gentlemen and Ladies:
We have acted as counsel to you in connection with the preparation
of a Registration Statement on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended (the "Act"), which you are
filing with the Securities and Exchange Commission with respect to
1,250,000 shares of Common Stock, $.0001 par value per share, of the
Company (the "Shares"), which are to be issued pursuant to the Emeritus
Corporation 1995 Stock Incentive Plan and the Emeritus Corporation 1995
Stock Option Plan for Nonemployee Directors (the "Plans").
We have examined the Registration Statement and such documents and
records of the Company and other documents as we have deemed necessary
for the purpose of this opinion. In giving this opinion, we are
assuming the authenticity of all instruments presented to us as
originals, the conformity with originals of all instruments presented to
us as copies and the genuineness of all signatures.
Based upon and subject to the foregoing, we are of the opinion that
the Shares that will be issued pursuant to the Plans have been duly
authorized and that, upon the due execution by the Company and the
registration by its registrars of the Shares, issuance thereof by the
Company and receipt of the consideration therefor in accordance with the
terms of the Plans, the Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to
the Registration Statement. In giving such consent, we do not admit
that we are in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
/s/ PERKINS COIE
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EXHIBIT 23.1
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Emeritus Corporation:
We consent to the use of our report dated February 23, 1996, except as to
note 12, which is as of March 19, 1996, incorporated herein by reference.
/s/ KPMG PEAT MARWICK LLP
Seattle, Washington
June 13, 1996
