<PAGE>
As filed with the Securities and Exchange Commission on November 21, 1996
Registration Statement No. 333-__
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ATRIA COMMUNITIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 61-1303738
(state or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
515 WEST MARKET STREET
LOUISVILLE, KENTUCKY 40202
(Address of Principal Executive Offices)
ATRIA COMMUNITIES, INC.
1996 STOCK OWNERSHIP INCENTIVE PLAN
(Full title of the plan)
W. PATRICK MULLOY, II COPY TO:
President and Chief Executive Officer IVAN M. DIAMOND
Atria Communities, Inc. Greenebaum Doll & McDonald, PLLC
515 West Market Street 3300 National City Tower
Louisville, Kentucky 40202 Louisville, Kentucky 40202
(Name and address of agent for service) (502) 589-4200
(502) 596-7540
(Telephone number, including area code,
of agent for service)
__________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================
Proposed Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered price per share* price* registration fee
==========================================================================================================
<S> <C> <C> <C> <C>
Common Stock, par 950,000 shares $11.00 $10,450,000 $3,166.67
value $.10 per share
- ----------------------------------------------------------------------------------------------------------
</TABLE>
*Estimated solely for the purpose of calculating the registration fee. This
estimate has been calculated in accordance with Rule 457(h) of the Securities
Act of 1933, as amended, and is based on the average of the high and low prices
per share as reported on the National Association of Securities Dealers -
National Market System on November 18, 1996.
The Exhibit Index is located on page 10 of this Registration Statement.
This Registration Statement consists of 12 pages.
<PAGE>
PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
- ------ ----------------------------------------
The following documents filed by Atria Communities, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
(File No. 0-21159) are incorporated into this Registration Statement by
reference:
(a) Registrant's Final Prospectus dated August 20, 1996 (Reg. No.
333-06907).
(b) Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996.
(c) Registrant's Current Reports on Form 8-K dated August 26, 1996
and October 11, 1996.
(d) The description of Registrant's shares of Common Stock, par value
$.10 per share (the "Common Stock"), contained in Amendment No. 2
to the Registration Statement filed by the Registrant with the
Commission on Form 8-A, dated August 20, 1996; and all other
amendments and reports filed for the purpose of updating such
description prior to the termination of the offering of the
Common Stock offered hereby.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date
of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part thereof from the filing date of such documents. Any
statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed document which
also is incorporated by reference herein) modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
- ------ --------------------------
The Common Stock of the Registrant is registered under Section 12 of
the Securities Exchange Act of 1934.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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William C. Ballard Jr., a director of the Registrant, is of counsel to
the firm of Greenebaum Doll & McDonald, PLLC and as of October 31, 1996
beneficially owned 10,500 shares of Registrant's Common Stock. Greenebaum Doll &
McDonald, PLLC, Louisville, Kentucky, has rendered the opinion as to the
validity of the securities being registered hereunder.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
- ------- ------------------------------------------
(a) Elimination of Certain Liability. Pursuant to Article IX of the
--------------------------------
Registrant's Restated Certificate of Incorporation ("Article IX"), a director of
the Registrant shall not be personally liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Registrant or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the General Corporation Law of the State of Delaware, or (iv) for
any transaction from which the director derived an improper personal benefit.
Article IX states that if the General Corporation Law of the State of Delaware
is amended to permit further elimination or limitation of the personal liability
of directors, then the liability of a director of the Registrant shall be
eliminated or limited to the fullest extent permitted by the General Corporation
Law of the State of Delaware, as so amended. Any repeal or modification of this
section of Article IX shall not adversely effect any right or protection of a
director of the Registrant existing at the time of such repeal or modification.
(b) Right to Indemnification. Subject to Section C of Article IX of
------------------------
the Registrant's Restated Certificate of Incorporation, each person who was or
is made a party or is threatened to be made a party to or is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that such
person, or a person of whom such person is the legal representative, is or was a
director or officer of the Registrant or is or was serving at the request of the
Registrant as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Registrant to the fullest
extent authorized by the General Corporation Law of the State of Delaware, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Registrant to
provide broader indemnification rights than said law permitted the Registrant to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, excise taxes under the Employee
Retirement Income Security Act of 1974, as in effect from time to time
("ERISA"), penalties and amounts to be paid in settlement) reasonably incurred
or suffered by such person in connection therewith. The Registrant may, by
action of its Board of Directors, provide indemnification to other
3
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employees or agents of the Registrant with the same scope and effect as the
indemnification of directors and officers pursuant to Article IX.
(c) Procedure for Indemnification. Any indemnification under Article
-----------------------------
IX of the Registrant's Restated Certificate of Incorporation (unless ordered by
a court) shall be made by the Registrant only as authorized in the specific case
upon a determination that indemnification is proper in the circumstances because
the indemnitee has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, as the same exists or
hereafter may be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Registrant to provide broader
indemnification rights than said law permitted the Registrant to provide prior
to such amendment). Such determination shall be made (i) by the Board of
Directors by a majority vote of a quorum consisting of directors who are not
parties to such action, suit or proceeding (the "Disinterested Directors"), or
(ii) if such a quorum of Disinterested Directors is not obtainable, or, even if
obtainable, a quorum of Disinterested Directors so directs, by independent legal
counsel and a written opinion, or (iii) by the stockholders. The majority of
Disinterested Directors may, as they deem appropriate, elect to have the
Registrant indemnify any other employee, agent or other person acting for or on
behalf of the Registrant.
(d) Advances for Expenses. Costs, charges and expenses (including
---------------------
attorneys' fees) incurred by a director or officer of the Registrant, or such
other person acting on behalf of the Registrant as determined in accordance with
Section C of Article IX of the Registrant's Restated Certificate of
Incorporation, in defending a civil or criminal action, suit or proceeding shall
be paid by the Registrant in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of the
director, officer or other person to repay all amounts so advanced in the event
that it shall ultimately be determined that such director, officer or other
person is not entitled to be indemnified by the Registrant as authorized in
Article IX or otherwise.
(e) Right of Claimant to Bring Suit. If a claim under sections of
-------------------------------
Article IX of the Registrant's Restated Certificate of Incorporation is not paid
in full by the Registrant within 30 days after a written claim has been received
by the Registrant, the claimant may at any time thereafter bring suit against
the Registrant to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Registrant) that the claimant has
not met the standard of conduct which makes it permissible under the General
Corporation Law of the State of Delaware for the Registrant to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Registrant. Neither the failure of the Registrant (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because the claimant has met the
applicable standards of conduct set forth in the General Corporation Law
4
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of the State of Delaware, nor an actual determination by the Registrant
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(f) Other Rights; Continuation of Right to Indemnification. The
------------------------------------------------------
indemnification and advancement of expenses provided by Article IX of the
Registrant's Restated Certificate of Incorporation shall not be deemed exclusive
of any other rights to which a claimant may be entitled under any law (common or
statutory), by-law, agreement, vote of stockholders or Disinterested Directors
or otherwise, both as to action in his or her official capacity and as to any
action in another capacity while holding office or while employed by or acting
as agent for the Registrant, and shall inure to the benefit of the estate,
heirs, executors and administrators of such person. All rights to
indemnification under Article IX shall be deemed to be a contract between the
Registrant and each director and officer of the Registrant who serves or served
in such capacity at any time while Article IX is in effect. Any repeal or
modification of Article IX or any repeal or modification of relevant provisions
of the General Corporation Law of the State of Delaware or any other applicable
law shall not in any way diminish any rights to indemnification of such
director, officer or the obligations of the Registrant arising hereunder with
respect to any action, suit or proceeding arising out of, or relating to, any
actions, transactions or facts occurring prior to the final adoption of such
modification or repeal. For the purposes of Article IX, references to "the
Registrant" include all constituent corporations absorbed in a consolidation or
merger as well as the resulting or surviving corporation, so that any person who
is or was a director or officer of such a constituent corporation or is or was
serving at the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise shall stand in the same position under the provisions of
Article IX of the Registrant's Restated Certificate of Incorporation, with
respect to the resulting or surviving corporation, as such person would if such
person had served the resulting or surviving corporation in the same capacity.
(g) Insurance. The Registrant may maintain insurance, at its
---------
expense, to protect itself and any director, officer, employee or agent of the
Registrant or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Registrant would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
(h) Severability. If any provision or provisions of Article IX of
------------
the Registrant's Restated Certificate of Incorporation shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (1) the validity,
legality and enforceability of the remaining provisions of Article IX
(including, without limitation, each portion of any paragraph of Article IX
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself held to be invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (2) to the fullest extent possible, the
provisions of Article IX (including, without limitation, each such portion of
any paragraph of Article IX containing any such provision
5
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held to be invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
- ------- ------------------------------------
Not applicable.
ITEM 8. EXHIBITS.
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See Exhibit Index.
ITEM 9. UNDERTAKINGS.
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(a) Rule 415 offerings.
------------------
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 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;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by 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.
6
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(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) Filings incorporating subsequent Exchange Act documents by reference.
--------------------------------------------------------------------
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Filing of Registration Statement on Form S-8.
--------------------------------------------
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing, or otherwise, Registrant has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by Registrant of expenses incurred or paid
by a director, officer or controlling person of 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,
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 of 1933 and will be governed by the final
adjudication of such issue.
7
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all 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 Louisville, Commonwealth of Kentucky, on November 21,
1996.
ATRIA COMMUNITIES, INC.
By: /s/ W. Patrick Mulloy, II
----------------------------
W. Patrick Mulloy, II
Chief Executive Officer,
President and Director
KNOW ALL MEN BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE APPEARS
BELOW CONSTITUTES AND APPOINTS W. PATRICK MULLOY, II AND J. TIMOTHY WESLEY, AND
EACH OF THEM WITH FULL POWER TO ACT WITHOUT THE OTHER, HIS OR HER TRUE AND
LAWFUL ATTORNEY-IN-FACT AND AGENT, WITH FULL POWER OF SUBSTITUTION AND
RESUBSTITUTION, FOR HIM OR HER AND IN HIS OR HER NAME, PLACE AND STEAD, IN ANY
AND ALL CAPACITIES, TO SIGN ANY AND ALL AMENDMENTS OR POST-EFFECTIVE AMENDMENTS
TO THIS REGISTRATION STATEMENT, AND TO FILE THE SAME, WITH ALL EXHIBITS THERETO,
AND OTHER DOCUMENTS IN CONNECTION THEREWITH, WITH THE SECURITIES AND EXCHANGE
COMMISSION, GRANTING UNTO SAID ATTORNEYS-IN-FACT AND AGENTS, AND EACH OF THEM,
FULL POWER AND AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND THING
REQUISITE OR NECESSARY TO BE DONE IN AND ABOUT THE PREMISES, AS FULLY TO ALL
INTENTS AND PURPOSES AS HE OR SHE MIGHT OR COULD DO IN PERSON, HEREBY RATIFYING
AND CONFIRMING ALL THAT EACH SUCH ATTORNEY-IN-FACT AND AGENT, OR HIS OR HER
SUBSTITUTE, MAY LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in their
capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME AND SIGNATURE TITLE DATE
<S> <C> <C>
/s/ W. Bruce Lunsford Chairman of the Board November 21, 1996
- ----------------------------
W. Bruce Lunsford
/s/ W. Patrick Mulloy, II Chief Executive Officer, November 21, 1996
- ----------------------------
W. Patrick Mulloy, II President and Director
</TABLE>
8
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<TABLE>
<S> <C> <C>
/s/ J. Timothy Wesley Chief Financial Officer, November 21, 1996
- -----------------------------
J. Timothy Wesley Vice President of Development and
Secretary (Chief Financial
and Accounting Officer)
/s/ Sandra Harden Austin Director November 21, 1996
- -----------------------------
Sandra Harden Austin
/s/ William C. Ballard Jr. Director November 21, 1996
- -----------------------------
William C. Ballard Jr.
/s/ Peter J. Grua Director November 21, 1996
- -----------------------------
Peter J. Grua
/s/ Thomas T. Ladt Director November 21, 1996
- -----------------------------
Thomas T. Ladt
/s/ R. Gene Smith Director November 21, 1996
- -----------------------------
R. Gene Smith
</TABLE>
9
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EXHIBIT INDEX
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Page No.
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<TABLE>
<CAPTION>
<S> <C> <C>
5. Opinion of Greenebaum Doll & McDonald, PLLC. 11
23.1 Consent of Ernst & Young LLP. 12
23.2 Consent of Greenebaum Doll & McDonald, PLLC
(included in Exhibit 5).
24. Power of Attorney. (Included on signature page
of Registration Statement on Form S-8).
99. Atria Communities, Inc. 1996 Stock Ownership
Incentive Plan. Exhibit 10.5 to the Registrant's
Registration Statement on Form S-1
(Reg. No. 333-06907) is hereby incorporated
by reference.
</TABLE>
10
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EXHIBIT 5
November 21, 1996
Securities and Exchange Commission
Division of Corporate Finance
450 Fifth Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: Atria Communities, Inc.
1996 Stock Ownership Incentive Plan
-----------------------------------
Ladies and Gentlemen:
We have acted as legal counsel in connection with the preparation of the
Form S-8 Registration Statement (the "Registration Statement") under the
Securities Act of 1933 covering 950,000 shares of common stock, par value $.10
per share (the "Shares") of Atria Communities, Inc., a Delaware corporation (the
"Company"), to be issued pursuant to the Atria Communities, Inc. 1996 Stock
Ownership Incentive Plan.
We have examined and are familiar with the Restated Certificate of
Incorporation and the Amended and Restated Bylaws of the Company, and the
proposed issuance of the Shares. We have also examined such other documents and
proceedings as we have considered necessary for the purpose of this opinion.
Based on the foregoing, it is our opinion that the Shares have been duly
authorized and, when issued and paid for in accordance with the terms of the
Registration Statement, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Greenebaum Doll & McDonald, PLLC
11
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Atria Communities, Inc. 1996 Stock Ownership
Incentive Plan of our report dated June 14, 1996, except for Notes 1 and 7 as to
which the date is August 14, 1996, with respect to the combined financial
statements of Atria Communities, Inc. included in its Registration Statement on
Form S-1 dated August 20, 1996, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Louisville, Kentucky
November 19, 1996
12
