<PAGE>
As filed with the Securities and Exchange Commission on August 20, 1997.
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
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ATRIA COMMUNITIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 61-1303738
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
515 West Market Street
Louisville, Kentucky 40202
(Address of Principal Executive Offices) (Zip Code)
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ATRIA COMMUNITIES, INC.
Vencor Employees' Stock Option Agreements
(Full title of the Plan)
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AUDRA J. ECKERLE
General Counsel
Atria Communities, Inc.
515 West Market Street
Louisville, Kentucky 40202
(502) 596-7540
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
-------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================
Title of Amount Proposed Proposed maximum Amount of
securities to be maximum offering aggregate registration
to be registered registered price per share(1) offering price(1) fee
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.10 90,000 shares $16.75 $1,507,500 $457
==========================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
This estimate has been calculated in accordance with Rule 457 under the
Securities Act of 1933 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 August 18, 1997.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Atria Communities, Inc. ("Registrant")
with the Securities and Exchange Commission (Commission File No. 0-21159)
are incorporated by reference into this Registration Statement:
(a) The Prospectus dated July 2, 1997 filed pursuant to Securities Act
Rule 424(b) as part of the Company's Form S-1 Registration Statement (Reg.
No. 333-28577) relating to its offering of Common Stock;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997, as filed August 5, 1997;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997, as filed April 30, 1997;
(d) The Registrant's Report on Form 8-K, as filed April 11, 1997;
(e) The description of the Company's Common Stock as contained in the
Registration Statement on Form 8-A, dated August 20, 1996, filed by the
Company to register the Common Stock under the Securities Exchange Act of
1934, as amended ("Exchange Act"), and all amendments or reports filed for
the purpose of updating such description prior to the termination of the
offering of Common Stock hereby.
All documents subsequently filed by Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment 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 hereof from the date of filing of such
documents. Any statement contained in a document 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 (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.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereby has been passed
upon for the Company by Greenebaum Doll & McDonald PLLC, Louisville,
Kentucky. William C. Ballard Jr., of counsel to Greenebaum Doll & McDonald
PLLC, is a director of the Company and beneficially owns 20,500 shares of
Common Stock of the Company.
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<PAGE>
Item 6. Indemnification of Directors and Officers.
A. Elimination of Certain Liability. Pursuant to Article IX of the
Registrant's 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. If the General
Corporation Law of the State of Delaware is hereafter 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
Section A 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 XI of the
Registrant's 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 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
(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 then 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
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<PAGE>
in accordance with Section C of Article IX, 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 a 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 B or
D of Article IX 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 stan dard of conduct which make 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 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 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 this Article IX of the Registrant's 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.
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<PAGE>
H. Severability. If any provision or provisions of Article IX 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 of the
Registrant's Certificate of Incorporation (including, without limitation,
each such portion of any paragraph of Article IX containing any such
provision 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.
The following exhibits are filed as part of this Registration Statement:
4.1 Restated Certificate of Incorporation (Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1, Reg. No. 333-06907 is
incorporated herein by reference).
4.2 Amended and Restated By-Laws (Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1, Reg. No. 333-06907 is incorporated
herein by reference).
5 Opinion of Greenebaum Doll & McDonald PLLC as to the legality of
the securities being registered.
23.1 Consent of Greenebaum Doll & McDonald PLLC (included in Exhibit
5).
23.2 Consent of Ernst & Young LLP.
24 Powers of Attorney (included on signature page of the Registration
Statement).
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 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;
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<PAGE>
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this Item
9 do not apply if the Registration Statement is on Form S-3 or Form S-8 and
the information required to be included in the post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13(a) 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.
(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 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.
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report, to security holders that is
incorporated by reference to the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to
be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such
interim financial information.
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 provisions, or otherwise,
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by 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 Act and will be governed by the final adjudication of such
issue.
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<PAGE>
SIGNATURES
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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, in the City of
Louisville, State of Kentucky, on August 20, 1997.
ATRIA COMMUNITIES, INC.
By: /s/ W. Patrick Mulloy, II
----------------------------------------
W. Patrick Mulloy, II
Chief Executive Officer and President
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
POWER OF ATTORNEY
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 such individual's true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for such
individual and in his or her name, place and stead, in any and all capacities,
to sign all amendments (including post-effective amendments) to this
Registration Statement and any registration statement related to the offering
contemplated by this Registration Statement that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act of 1933, and to file
the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission and any State or other
regulatory authority, 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 said attorneys-in-fact and agents, or any of
them, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ W. Bruce Lunsford Chairman of the Board August 20, 1997
-------------------------------
W. Bruce Lunsford
/s/ W. Patrick Mulloy, II Chief Executive Officer, August 20, 1997
------------------------------- President and Director
W. Patrick Mulloy, II
/s/ J. Timothy Wesley Chief Financial Officer, August 20, 1997
------------------------------- Vice President of
J. Timothy Wesley Development and Secretary
(Chief Financial and
Accounting Officer)
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<PAGE>
/s/ Sandra Harden Austen Director August 20, 1997
-------------------------------
Sandra Harden Austen
/s/ William C. Ballard Jr. Director August 20, 1997
-------------------------------
William C. Ballard Jr.
/s/ Peter J. Grua Director August 20, 1997
-------------------------------
Peter J. Grua
/s/ Thomas T. Ladt Director August 20, 1997
-------------------------------
Thomas T. Ladt
/s/ R. Gene Smith Director August 20, 1997
-------------------------------
R. Gene Smith
-8-
<PAGE>
Exhibit 5
[LETTERHEAD OF GREENEBAUM DOLL & MCDONALD PLLC]
August 20, 1997
Atria Communities, Inc.
515 West Market Street
Louisville, KY 40202
Ladies and Gentlemen:
We have acted as legal counsel in connection with the preparation of a
Registration Statement on Form S-8 under the Securities Act of 1933, as amended
(the "Registration Statement"), covering an aggregate of 90,000 shares of Common
Stock, par value $.10 per share (the "Common Stock"), of Atria Communities,
Inc., a Delaware corporation (the "Company"), to be issued under the Vencor
Employees' Stock Option Agreements (the "Agreements").
We have examined and are familiar with the Certificate of Incorporation and
By-Laws of the Company, and the various corporate records and proceedings
relating to the organization of the Company and the proposed issuance of the
Common Stock. 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 Common Stock has been
duly authorized and, when issued and paid for in accordance with the terms of
the Registration Statement and the Agreements, 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, and with such state securities administrators as may
require such opinion of counsel for the registration of the Common Stock. In
giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
as amended, or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Greenebaum Doll & McDonald PLLC
Greenebaum Doll & McDonald PLLC
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Atria Communities, Inc. Vencor Employees' Stock Option
Agreements of our report dated February 1, 1997, except for Note 11, as to which
the date is March 3, 1997, with respect to the consolidated financial statements
of Atria Communities, Inc. included in its Registration Statement on Form S-1
dated July 2, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Louisville, Kentucky
August 18, 1997
