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As filed with the Securities and Exchange Commission on August 5, 1997
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________________
ALTERNATIVE LIVING SERVICES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 39-1771281
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
450 N. SUNNYSLOPE ROAD
SUITE 300
BROOKFIELD, WISCONSIN 53005
(Address of principal executive offices)
AMENDED AND RESTATED ALTERNATIVE LIVING SERVICES, INC. 1995
INCENTIVE COMPENSATION PLAN; THE STOCK OPTION AGREEMENT
WITH WILLIAM F. LASKY; AND THE STOCK OPTION AGREEMENT
WITH J. DAVID LUTICH
(Full title of the plan)
ALAN C. LEET, ESQ.
ROGERS & HARDIN LLP
2700 INTERNATIONAL TOWER
229 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30303
(404) 522-4700
(Name, address and telephone number, including area code, of agent for service)
_______________________
CALCULATION OF REGISTRATION FEE
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<CAPTION>
==============================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered(2) Share Price Registration Fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value
per share (1) 1,497,503 $21.50 $32,196,314.50(3) $ 9,757
===============================================================================================================================
</TABLE>
(1) Issuable pursuant to the Amended and Restated Alternative Living
Services, Inc. 1995 Incentive Compensation Plan and certain other
employee benefit plans.
(2) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended,
this registration statement also includes an indeterminable number of
additional shares that may become issuable as a result of cancelled,
terminated or expired options for Common Stock.
(3) Pursuant to Rule 457(c) under the Securities Act of 1933, as
amended, and solely for the purpose of calculating the applicable
registration fee, the proposed maximum offering price per share has
been estimated at $21.50, which amount represents the average of the
high and low sales prices of the common stock of Alternative Living
Services, Inc. on August 1, 1997 as reported on the American Stock
Exchange.
________________________
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REGISTRATION STATEMENT
ON
FORM S-8
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The document(s) containing the information specified in Part I of Form
S-8 have been or will be sent or given to employees as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996, as amended by Amendment No. 1 on Form
10-K/A filed with the Commission on May 12, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for this
fiscal quarter ended March 31, 1997;
(c) The Registrant's Current Report on Form 8-K filed with the
Commission on January 14, 1997, as amended by Amendment No. 1 on Form
8-K/A filed with the Commission on March 17, 1997; and
(d) The Description of Capital Stock provided in the
Registrant's Registration Statement on Form 8-A, filed with the
Commission on July 30, 1996.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prior to the filing of a post-effective amendment
to this Registration Statement which indicates that all the shares of Common
Stock offered hereby have been sold or which deregisters all of such shares
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company's Restated Certificate of Incorporation provides that no
director of the Company shall be personally liable to the Company or its
stockholders for monetary damages for any breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
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violation of law, (iii) in respect of certain unlawful dividend payments or
stock purchases or redemptions, or (iv) for any transaction from which the
director derived an improper personal benefit. The effect of these provisions
is to eliminate the rights of the Company and its stockholders (through
stockholders' derivative suits on behalf of the Company) to recover monetary
damages against a director for breach of fiduciary duty as a director
(including breaches resulting from grossly negligent behavior), except in the
situations described above. These provisions do not limit the liability of
directors under federal securities laws and do not affect the availability of
equitable remedies such as an injunction or rescission based upon a director's
breach of his duty of care.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this Registration Statement are listed on the Exhibit
Index included elsewhere herein.
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 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.
(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.
(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 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 Section 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 the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
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(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
provisions described in Item 6, 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 or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Brookfield, State of Wisconsin, on this 29th day of
July, 1997.
ALTERNATIVE LIVING SERVICES, INC.
By: /s/ William F. Lasky
---------------------------------------
William F. Lasky
President and Chief Executive Office
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated
as of July 29, 1997.
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<CAPTION>
Name Capacity
---- --------
<S> <C>
*
- ---------------------------------------
Richard W. Boehlke Vice Chairman of the Board
*
- ---------------------------------------
Gene E. Burleson Director
*
- ---------------------------------------
Robert Haveman Director
*
- ---------------------------------------
Ronald G. Kenny Director
/s/ Thomas E. Komula
- ---------------------------------------
Thomas E. Komula Senior Vice President and Chief Financial
Officer
*
- ---------------------------------------
William F. Lasky President and Chief Executive Officer
*
- ---------------------------------------
John D. Peterson Vice President and Controller
*
- ---------------------------------------
William G. Petty Chairman of the Board
*
- ---------------------------------------
Jerry L. Tubergen Director
*By: /s/ Thomas E. Komula
----------------------------------
Thomas E. Komula
As Attorney-In-Fact
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE NO.
- ------- ----------- --------
<S> <C> <C>
4.1 Restated Certificate of
Incorporation of the Registrant
(incorporated herein by reference to
Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1,
Registration No. 333-04595, filed
with Commission on July 30, 1996
(the "Form S-1")).
4.2 Restated Bylaws of the Registrant,
(incorporated herein by reference to
Exhibit 3.2 to the Form S-1).
5 Opinion of Rogers & Hardin LLP II-6
23.1 Consent of KPMG Peat Marwick LLP II-8
23.2 Consent of Rogers & Hardin LLP
(contained in Exhibit 5)
24 Powers of Attorney II-9
</TABLE>
_______________________
* Incorporated herein by reference as indicated above.
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EXHIBIT 5
ROGERS & HARDIN LLP
2700 INTERNATIONAL TOWER, PEACHTREE CENTER
229 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30303
August 5, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Alternative Living Services, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Alternative Living Services, Inc. (the
"Company") in connection with the filing by the Company of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") registering under the Securities Act of
1933, as amended, 1,497,503 shares of common stock, $.01 par value per share
(the "Common Stock"), of the Company issuable in connection with the Amended
and Restated Alternative Living Services, Inc. 1995 Incentive Compensation Plan
(the "Plan") and certain other employee benefit plans of the Company. All such
shares of Common Stock are referred to herein as the "Shares".
The opinion hereinafter set forth is given pursuant to Item 8 of
Form S-8 and Item 601 of Regulation S-K. Such opinion is given solely for the
benefit of the Commission, may be relied upon only by the Commission in
connection with the Registration Statement and may not be used, circulated,
quoted or referred to by or filed with any other person or entity, including
any other governmental unit or agency, without first obtaining the express
written consent of this firm.
In giving the opinion hereinafter set forth, we have examined the
minutes of the proceedings of the stockholders and the Board of Directors of
the Company, the Plan and such other agreements, documents, instruments and
records as we deemed necessary or appropriate under the circumstances for us to
express the opinion hereinafter set forth. As to various factual matters that
are material to our opinion, we have relied upon certificates of officers of
the Company and certificates and orders of various public officials. In making
the foregoing examinations, we assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
the original documents of all documents submitted to us as copies, the
authority of the person or persons who executed each of such documents on
behalf of any person or entity other than the Company, the correctness and
accuracy of all certificates of officers of the Company and the correctness and
accuracy of all certificates and orders of various public officials.
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Securities and Exchange Commission
August 1, 1997
Page 2
Based upon and subject to the foregoing, we are of the opinion that
the Shares, when issued in accordance with the Plan against payment in full of
the purchase price therefor, when applicable, will be validly issued, fully
paid and nonassessable.
Our conclusions are limited to the matters expressly set forth as
our "opinion" in the immediately preceding paragraph, and no opinion is implied
or to be inferred beyond the matters expressly so stated. Such opinion is
given as of the date hereof, and we expressly decline any undertaking to revise
or update such opinion subsequent to the date hereof or to advise the
Commission of any matter arising subsequent to the date hereof that would cause
us to modify, in whole or in part, such opinion.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
Rogers & Hardin
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to incorporation by reference in the registration
statement dated July 28, 1997 on Form S-8 of Alternative Living Services, Inc.
of our report dated February 21, 1997, relating to the consolidated balance
sheets of Alternative Living Services, Inc. and subsidiaries as of December 31,
1996 and 1995 and the related consolidated statements of operations, changes in
stockholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1996 and all related schedules, which report appears
in the December 31, 1996 annual report on Form 10-K (as amended May 12, 1997)
of Alternative Living Services, Inc.
KPMG PEAT MARWICK LLP
By: /s/ KPMG Peat Marwick
----------------------------
August 1, 1997
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EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas E. Komula his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the Registration
Statement on Form S-8 of Alternative Living Services, Inc. (the "Company"),
relating to the Amended and Restated Alternative Living Services, Inc. 1995
Stock Incentive Plan and certain other employee benefit plans of the Company,
filed with the Commission, and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done, 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 and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
This 29th day of July, 1997.
/s/ Richard W. Boehlke
-----------------------------------
Richard W. Boehlke
/s/ Gene E. Burleson
-----------------------------------
Gene E. Burleson
/s/ Robert Haveman
-----------------------------------
Robert Haveman
/s/ Ronald G. Kenny
-----------------------------------
Ronald G. Kenny
/s/ William F. Lasky
-----------------------------------
William F. Lasky
/s/ John D. Peterson
-----------------------------------
/s/ William G. Petty, Jr.
-----------------------------------
William G. Petty, Jr.
/s/ Jerry L. Tubergen
-----------------------------------
Jerry L. Tubergen
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