As filed with the Securities and Exchange Commission on August 27, 1999
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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BROOKDALE LIVING COMMUNITIES, INC.
(Exact name of issuer as specified in its charter)
Delaware 36-4103821
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
77 West Wacker Drive, Suite 4400
Chicago, Illinois 60601
(Address of Principal Executive Offices) (Zip Code)
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1998 BROOKDALE LIVING COMMUNITIES, INC. STOCK INCENTIVE PLAN
AND
1999 BROOKDALE LIVING COMMUNITIES, INC. STOCK INCENTIVE PLAN
(Full title of the plans)
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Copy to:
ROBERT J. RUDNIK, ESQ. BRIAN T. BLACK, ESQ.
Executive Vice President, Winston & Strawn
General Counsel and Secretary 35 West Wacker Drive
77 West Wacker Drive, Suite 4400 Chicago, Illinois 60601
Chicago, Illinois 60601 (312) 558-5600
(312) 977-3700
(Name, address, telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Proposed maximum Proposed Amount of
securities to Amount to be offering price maximum aggregate registration
be registered registered per share(1) offering price(1) fee
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Common Stock, 450,000 $13.40625 $6,032,813 $1,678
par value $0.01
per share
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, as amended, on the
basis of the average of the high and low prices of the Common Stock, par
value $0.01 per share, of Brookdale Living Communities, Inc. on the Nasdaq
National Market as of August 25, 1999.
<PAGE>
PART I -- INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Brookdale Living Communities, Inc. shall deliver the document
containing the information in Part I of this Registration Statement on Form S-8
to each participant in the 1998 Brookdale Living Communities, Inc. Stock
Incentive Plan and the 1999 Brookdale Living Communities, Inc. Stock Incentive
Plan as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Securities Act"). Such document is not being filed with or included in
this Registration Statement (by incorporation by reference or otherwise) in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission"). Such document and the documents incorporated by
reference into this Registration Statement pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II -- INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Brookdale
Living Communities, Inc., a Delaware corporation (the "Company" or the
"Registrant"), under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated, as of their respective dates, into this
Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K (File No.
0-22253) for the fiscal year ended December 31, 1998,
as filed with the Commission on March 31, 1999;
(b) The Company's Annual Report on Form 10-K/A (File No.
0-22253) for the fiscal year ended December 31, 1997,
as filed with the Commission on March 31, 1999, the
Company's Quarterly Reports on Form 10-Q/A (File No.
0-22253) for the quarters ended March 31, 1998, June
30, 1998 and September 30, 1998, as filed with the
Commission on March 31, 1999, March 30, 1999 and
March 30, 1999, respectively, the Company's Quarterly
Reports on Form 10-Q (File No. 0-22253) for the
quarters ended March 31, 1999 and June 30, 1999, as
filed with the Commission on May 17, 1999 and August
16, 1999, respectively, the Company's Current Reports
on Form 8-K (File No. 0-22253) dated December 22,
1998, January 19, 1999, March 4, 1999, April 27, 1999
and May 27, 1999, as filed with the Commission on
January 6, 1999, January 29, 1999, March 10, 1999,
April 29, 1999, May 19, 1999 and June 21, 1999,
respectively, and the Company's Current Report on
Form 8-K/A (File No. 0-22253) dated December 22,
1998, as filed with the Commission on March 8, 1999;
and
(c) The description of the Company's Common Stock, par
value $0.01 per share, contained in Amendment No. 1
to the Company's Registration Statement on Form 8-A,
as filed with the Commission on April 17, 1997.
<PAGE>
All documents subsequently filed by the Company 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 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 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 or in any other subsequently
filed document which is or is deemed to be incorporated by reference 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.
Wayne D. Boberg, a director of the Company, is a partner of
the law firm of Winston & Strawn, which has provided, and continues to provide,
legal services to the Company. As of the date of this Registration Statement,
Mr. Boberg owns 2,500 shares of Common Stock and has options to acquire an
additional 8,000 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the General Corporation Law of the State
of Delaware ("Section 145"), a corporation may indemnify its directors,
officers, employees and agents and its former directors, officers, employees and
agents and those who serve, at the corporation's request, in such capacities
with another enterprise, against expenses (including attorneys' fees), as well
as judgments, fines and settlements in non-derivative lawsuits, actually and
reasonably incurred in connection with the defense of any action, suit or
proceeding in which they or any of them were or are made parties or are
threatened to be made parties by reason of their serving or having served in
such capacity. Section 145 provides, however, that such person must have acted
in good faith and in a manner he or she reasonably believed to be in (or not
opposed to) the best interests of the corporation, and, in the case of a
criminal action, such person must have had no reasonable cause to believe his or
her conduct was unlawful. In addition, Section 145 does not permit
indemnification in an action or suit by or in the right of the corporation,
where such person has been adjudged liable to the corporation, unless, and only
to the extent that, a court determines that such person fairly and reasonably is
entitled to indemnity for expenses the court deems proper in light of liability
adjudication. Indemnity is mandatory to the extent a claim, issue or matter has
been successfully defended.
The Company's Amended and Restated By-laws (the "By-laws")
provide for mandatory indemnification of directors and officers generally to the
same extent authorized by Section 145. Under the By-laws, the Company shall
advance expenses incurred by an officer or director in defending any such action
if the director or officer undertakes to repay such amount if it is determined
that he or she is not entitled to indemnification.
The Company has also entered into indemnification agreements
with each of the Company's directors, including the officers of the Company who
are also directors. The indemnification agreements require, among other things,
that the Company indemnify such directors and officers to the
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<PAGE>
fullest extent permitted by law and advance to such directors and officers all
related expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company also must indemnify and advance
all expenses incurred by such directors and officers seeking to enforce their
rights under the indemnification agreements and cover such directors and
officers under the Company's directors' and officers' liability insurance.
The Company's Restated Certificate of Incorporation provides
that the Company's directors will not be personally liable to the Company or its
stockholders for monetary damages resulting from breaches of their fiduciary
duty as directors, except (a) for any breach of the directors' duty of loyalty
to the Company or its stockholders, (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (c) for
unlawful payments of dividends or unlawful stock repurchases or redemptions as
provided in Section 174 of the General Corporation Law of the State of Delaware
or (d) for transactions from which directors derive improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 1998 Brookdale Living Communities, Inc. Stock
Incentive Plan, as filed with the Commission on
August 16, 1999 as Exhibit 10.13 to the Company's
Form 10-Q for the period ended June 30, 1999 (File
No. 0-22253) and incorporated herein by reference
4.2 1999 Brookdale Living Communities, Inc. Stock
Incentive Plan, as filed with the Commission on
August 16, 1999 as Exhibit 10.14 to the Company's
Form 10-Q for the period ended June 30, 1999 (File
No. 0-22253) and incorporated herein by reference
4.3 Form of certificate representing Common Stock of the
Company, as filed with the Commission on May 17, 1997
as Exhibit 4.1 to the Company's Registration
Statement on Form S-1 (Registration No. 333-12259)
and incorporated herein by reference
5.1 Opinion of Winston & Strawn as to the legality of the
securities being registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Winston & Strawn (included as part of
Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page
hereof)
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:
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(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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(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 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 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 or 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 OF 1933,
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 CHICAGO, STATE OF ILLINOIS, ON THE 27TH DAY OF
AUGUST, 1999.
BROOKDALE LIVING COMMUNITIES, INC.
By: /s/ MARK J. SCHULTE
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Mark J. Schulte
President and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, THAT EACH PERSON WHOSE
SIGNATURE APPEARS BELOW CONSTITUTES AND APPOINTS MARK J. SCHULTE AND ROBERT J.
RUDNIK, AND EACH OF THEM, HIS TRUE AND LAWFUL ATTORNEYS-IN-FACT AND AGENTS, WITH
FULL POWER OF SUBSTITUTION, FOR HIM AND IN HIS NAME, PLACE AND STEAD, IN ANY AND
ALL CAPACITIES, TO SIGN ANY AND ALL AMENDMENTS (INCLUDING POST-EFFECTIVE
AMENDMENTS) TO THIS REGISTRATION STATEMENT, AND TO FILE THE SAME, WITH ALL
EXHIBITS THERETO AND ALL DOCUMENTS IN CONNECTION THEREWITH, WITH THE SECURITIES
AND EXCHANGE COMMISSION, GRANTING UNTO SAID ATTORNEYS-IN-FACT AND AGENTS 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 EACH SAID ATTORNEYS-IN-FACT AND AGENTS, OR HIS OR THEIR SUBSTITUTE OR
SUBSTITUTES, 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 BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
/s/ MICHAEL W. RESCHKE August 27, 1999
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Michael W. Reschke
Chairman of the Board, Director
/s/ MARK J. SCHULTE August 27, 1999
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Mark J. Schulte
President and Chief Executive Officer, Director
(Principal Executive Officer)
/s/ DARRYL W. COPELAND, JR. August 27, 1999
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Darryl W. Copeland, Jr.
Executive Vice President and Chief Financial Officer, Director
(Principal Financial Officer)
/s/ R. STANLEY YOUNG August 27, 1999
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R. Stanley Young
Senior Vice President-Finance and Treasurer
(Principal Accounting Officer)
/s/ WAYNE D. BOBERG August 27, 1999
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Wayne D. Boberg
Director
/s/ BRUCE L. GEWERTZ August 18, 1999
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Bruce L. Gewertz
Director
<PAGE>
/s/ DARRYL W. HARTLEY-LEONARD August 19, 1999
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Darryl W. Hartley-Leonard
Director
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Paul H. Warren
Director
/s/ MARK H. TABAK August 23, 1999
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Mark H. Tabak
Director
EXHIBIT 5.1
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
August 27, 1999
Brookdale Living Communities, Inc.
77 West Wacker Drive
Suite 4400
Chicago, Illinois 60601
Ladies and Gentlemen:
We have acted as special counsel to Brookdale Living
Communities, Inc., a Delaware corporation (the "Company"), in connection with
the registration statement on Form S-8 (the "Registration Statement") relating
to the registration of an aggregate of 450,000 shares (the "Shares") of the
Company's common stock, par value $0.01 per share ("Common Stock"), issuable
upon the exercise of certain stock options ("Options") that may be granted
pursuant to the 1998 Brookdale Living Communities, Inc. Stock Incentive Plan and
the 1999 Brookdale Living Communities, Inc. Stock Incentive Plan (together, the
"Plans").
This opinion is delivered in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended
(the "Act").
In connection with this opinion, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of: (i) the Registration Statement, as filed with the Securities
and Exchange Commission (the "Commission") under the Act; (ii) the Restated
Certificate of Incorporation of the Company, as currently in effect; (iii) the
Amended and Restated By-laws of the Company, as currently in effect; (iv) the
Plans; (v) resolutions of the Board of Directors of the Company relating to,
among other things, the reservation for issuance of the Shares, the filing of
the Registration Statement and the approval of the Plans; and (vi) minutes of
the annual meetings of stockholders of the Company relating to, among other
things, the approval of the Plans. We have also examined such other documents as
we have deemed necessary or appropriate as a basis for the opinion set forth
below.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. We have also assumed
that the Company's Board of Directors, or a duly authorized committee thereof,
will have approved the grant of each Option prior to the grant thereof. As to
any facts material to this opinion which we did not independently establish or
verify, we have relied upon oral or written statements and representations of
officers and other representatives of the Company and others.
<PAGE>
Brookdale Living Communities, Inc.
August 27, 1999
Page 2
Based upon and subject to the foregoing, we are of the opinion
that all Shares issued upon exercise of stock options granted pursuant to the
Plans will be, upon payment of the specified exercise price therefor, legally
issued, fully paid and non-assessable shares of Common Stock of the Company.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving such consent,
we do not concede that we are experts within the meaning of the Act or the rules
and regulations thereunder or that this consent is required by Section 7 of the
Act.
Very truly yours,
/s/ Winston & Strawn
Winston & Strawn
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1998 Brookdale Living Communities, Inc. Stock Incentive
Plan and the 1999 Brookdale Living Communities, Inc. Stock Incentive Plan of our
reports indicated below filed with the Securities and Exchange Commission.
Financial Statements Date of Auditor's Report
-------------------- ------------------------
Consolidated financial statements of March 4, 1999
Brookdale Living Communities, Inc. as
of December 31, 1998 and 1997 and for
the year ended December 31, 1998 and
for the period from May 7, 1997 through
December 31, 1997 and the combined
statements of operations, changes in
partners' capital (deficit) and cash
flows of the Predecessor Properties for
the period from January 1, 1997 through
May 6, 1997 and for the year ended
December 31, 1996 included in the
Annual Report (Form 10-K) of Brookdale
Living Communities, Inc. for the year
ended December 31, 1998.
Financial Statements of Woodside February 2, 1999
Terrace Partners for the period from
January 1, 1998 to September 30, 1998
included in the Current Report (Form
8-K/A) of Brookdale Living Communities,
Inc. dated December 22, 1998, as filed
with the Securities and Exchange
Commission on March 8, 1999.
Consolidated balance sheet of Brookdale March 26, 1998
Living Communities, Inc. as of December
31, 1997 and the consolidated
statements of operations, stockholders'
equity and cash flows for the period
from May 7, 1997 through December 31,
1997 and the combined balance sheet of
the Predecessor Properties as of
December 31, 1996 and the combined
statements of operations, changes in
partners' capital (deficit) and cash
flows for the period from January 1,
1997 through May 6, 1997 and for each
of the two years in the period ended
December 31, 1996 included in the
Annual Report (Form 10-K/A) of
Brookdale Living Communities, Inc. for
the year ended December 31, 1997.
ERNST & YOUNG LLP
Chicago, Illinois
August 23, 1999
