Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NATIONAL HEALTH REALTY, INC.
(Exact Name of Registrant as Specified in its Restated and Amended Limited
Partnership Agreement)
Maryland 52-2059888
-------- ----------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
100 Vine Street
Murfreesboro, Tennessee 37130
(Address of Principal Executive Offices)
(Zip Code)
1997 Stock Option & Stock Appreciation Rights Plan
--------------------------------------------------
(Full Name of Plan)
W. Andrew Adams
Chairman, President, and Chief Executive Officer
National Health Realty, Inc.
100 Vine Street, Murfreesboro, TN 37130
(Name and Address of Agent for Service)
(615) 890-2020
(Telephone number, including area code for agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share<F1> Price Fee
- ---------- -------------- ---------- ----------- ------------
<S> <C> <C> <C> <C>
Common 500,000 Shares $13.375 $6,687,500 $1,972.81
Stock
<FN>
<F1> Pursuant to Rule 457, the offering price is estimated solely for the
purpose of calculating the registration fee on the basis of the closing bid
price of $13.375 per Share, as reported on the American Stock Exchange on
August 7, 1998.
</TABLE>
The Index to Exhibits appears on sequentially numbered page 7.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference in this
Registration Statement. In addition, all documents subsequently filed by
National Health Realty, Inc., (the "Company") pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (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 thereof 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superseded for purposes of this Registration Statement to the extent that a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 or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
(a) The Company's Annual Report on Form 10-K for the year ended December 31,
1997.
(b) The Company's Quarterly Report on Form 10-Q for the quarters ended March
31, 1998 and June 30, 1998.
(c) The Company's registration statement on Form 10 (SEC File No. 1-13478),
filed October 14, 1997 and amended through Amendment No. 1 on December
5, 1997.
(d) The description of the Company's Common Stock as contained in the
Company's Registration Statement on Form S-4 (SEC File No. 333-37173),
filed October 3, 1997, amended through Amendment No. 1 on December 20,
1997, amended through Amendment No. 2 on December 4, 1997, amended
through Amendment No. 3 on December 5, 1997 and amended through
Amendment No. 4 on December 5, 1997.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The audited consolidated financial statements and schedules of the
Company incorporated by reference herein have been audited by Arthur Andersen,
LLP, independent public accountants, as indicated in their reports with
respect thereto, and are included herein in reliance upon the authority of
said firm in giving said reports.
Item 6. Indemnification.
Section 2-418 of the Maryland General Corporation Law provides as follows:
(a) DEFINITIONS. In this section the following words have the meanings
indicated.
(1) "Director" means any person who is or was a director of a
corporation and any person who, while a director of a corporation,
is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, or agent of another foreign
or domestic corporation, partnership, joint venture, trust, other
enterprise, or employee benefit plan.
(2) "Corporation" includes any domestic or foreign predecessor entity
of a corporation in a merger, consolidation, or other transaction
in which the predecessor's existence ceased upon consummation of
the transaction.
(3) "Expenses" include attorney's fees.
(4) "Official capacity" means the following:
(i) When used with respect to a director, the office of director
in the corporation; and
(ii) When used with respect to a person other than a director as
contemplated in subsection (j), the elective or appointive
office in the corporation held by the officer, or the
employment or agency relationship undertaken by the employee
or agent in behalf of the corporation.
(iii) "Official capacity" does not include service for any other
foreign or domestic corporation or any partnership, joint
venture, trust, other enterprise, or employee benefit plan.
(5) "Party" includes a person who was, is, or is threatened to be made
a named defendant or respondent in a proceeding.
(6) "Proceeding" means any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, or
investigative.
(b) PERMITTED INDEMNIFICATION OF DIRECTOR.
(1) A corporation may indemnify any director made a party to any
proceeding by reason of service in that capacity if the director:
(i) Acted in good faith;
(ii) Reasonably believed:
1. In the case of conduct in the director's official
capacity with the corporation, that the conduct was in
the best interests of the corporation; and
2. In all other cases, that the conduct was at least not
opposed to the best interests of the corporation; and
(iii) In the case of any criminal proceeding, had no reasonable
cause to believe that the conduct was unlawful.
(2) (i) Indemnification may be against judgments, penalties, fines,
settlements, and reasonable expenses actually incurred by
the director in connection with the proceeding.
(ii) However, if the proceeding was one by or in the right of the
corporation, indemnification may be made only against
reasonable expenses and may not be made in respect of any
proceeding in which the director shall have been adjudged to
be liable to the corporation.
(3) The termination of any proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent
creates a rebuttable presumption that the director did not meet
the requisite standard of conduct set forth in this subsection.
(c) NO INDEMNIFICATION OF DIRECTOR LIABLE FOR IMPROPER PERSONAL BENEFIT. A
director may not be indemnified under subsection (b) of this section in
respect of any proceeding charging improper personal benefit to the
director, whether or not involving action in the director's official
capacity, in which the director was adjudged to be liable on the basis
that personal benefit was improperly received.
(d) REQUIRED INDEMNIFICATION AGAINST EXPENSES INCURRED IN SUCCESSFUL
DEFENSE. - -Unless limited by the charter:
(1) A director who has been successful, on the merits or otherwise, in
the defense of any proceeding referred to in subsection (b) of
this section shall be indemnified against reasonable expenses
incurred by the director in connection with the proceeding.
(2) A court of appropriate jurisdiction, upon application of a
director and such notice as the court shall require, may order
indemnification in the following circumstances:
(i) If it determines a director is entitled to reimbursement
under paragraph (1) of this subsection, the court shall
order indemnification, in which case the director shall be
entitled to recover the expenses of securing such
reimbursement; or
(ii) If it determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant
circumstances, whether or not the director has met the
standards of conduct set forth in subsection (b) of this
section or has been adjudged liable under the circumstances
described in subsection (c) of this section, the court may
order such indemnification as the court shall deem proper.
However, indemnification with respect to any proceeding by
or in the right of the corporation or in which liability
shall have been adjudged in the circumstances described in
subsection (c) shall be limited to expenses.
(3) A court of appropriate jurisdiction may be the same court in which
the proceeding involving the director's liability took place.
(e) DETERMINATION THAT INDEMNIFICATION IS PROPER.
(1) Indemnification under subsection (b) of this section may not be
made by the corporation unless authorized in the specific case
after a determination has been made that indemnification of the
director is permissible in the circumstances because the director
has met the standard of conduct set forth in subsection (b) of
this section.
(2) Such determination shall be made:
(i) By the board of directors by a majority vote of a quorum
consisting of directors not, at the time, parties to the
proceeding, or, if such a quorum cannot be obtained, then by
a majority vote of a committee of the board consisting
solely of two or more directors not, at the time, parties to
such proceeding and who were duly designated to act in the
matter by a majority vote of the full board in which the
designated directors who are parties may participate;
(ii) By special legal counsel selected by the board of directors
or a committee of the board by vote as set forth in
subparagraph (i) of this paragraph, or, if the requisite
quorum of the full board cannot be obtained therefor and the
committee cannot be established, by a majority vote of the
full board in which directors who are parties may
participate; or
(iii) By the stockholders.
(3) Authorization of indemnification and determination as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible. However, if
the determination that indemnification is permissible is made by
special legal counsel, authorization of indemnification and
determination as to reasonableness of expenses shall be made in
the manner specified in subparagraph (ii) of paragraph (2) of this
subsection for selection of such counsel.
(4) Shares held by directors who are parties to the proceeding may not
be voted on the subject matter under this subsection.
(f) PAYMENT OF EXPENSES IN ADVANCE OF FINAL DISPOSITION OF ACTION.
(1) Reasonable expenses incurred by a director who is a party to a
proceeding may be paid or reimbursed by the corporation in advance
of the final disposition of the proceeding, after a determination
that the facts then known to those making the determination would
not preclude indemnification under this section, upon receipt by
the corporation of:
(i) A written affirmation by the director of the director's good
faith belief that the standard of conduct necessary for
indemnification by the corporation as authorized in this
section has been met; and
(ii) A written undertaking by or on behalf of the director to
repay the amount if it shall ultimately be determined that
the standard of conduct has not been met.
(2) The undertaking required by subparagraph (ii) of paragraph (1) of
this subsection shall be an unlimited general obligation of the
director but need not be secured and may be accepted without
reference to financial ability to make the repayment.
(3) Determinations and authorizations of payments under this
subsection shall be in the manner specified in subsection (e) of
this section.
(g) VALIDITY OF INDEMNIFICATION PROVISION. A provision for the corporation
to indemnify a director who is made a party to a proceeding, whether
contained in the charter, the bylaws, a resolution of stockholders or
directors, an agreement or otherwise, except as contemplated by
subsection (k) of this section, is not valid unless consistent with this
section or, to the extent that indemnity under this section is limited
by the charter, consistent with the charter.
(h) REIMBURSEMENT OF DIRECTOR'S EXPENSES INCURRED WHILE APPEARING AS
WITNESS. This section does not limit the corporation's power to pay or
reimburse expenses incurred by a director in connection with an
appearance as a witness in a proceeding at a time when the director has
not been made a named defendant or respondent in the proceeding.
(i) DIRECTOR'S SERVICE TO EMPLOYEE BENEFIT PLAN. For purposes of this
section:
(1) The corporation shall be deemed to have requested a director to
serve an employee benefit plan where the performance of the
director's duties to the corporation also imposes duties on, or
otherwise involves services by, the director to the plan or
participants or beneficiaries of the plan;
(2) Excise taxes assessed on a director with respect to an employee
benefit plan pursuant to applicable law shall be deemed fines; and
(3) Action taken or omitted by the director with respect to an
employee benefit plan in the performance of the director's duties
for a purpose reasonably believed by the director to be in the
interest of the participants and beneficiaries of the plan shall
be deemed to be for a purpose which is not opposed to the best
interests of the corporation.
(j) OFFICER, EMPLOYEE OR AGENT. Unless limited by the charter:
(1) An officer of the corporation shall be indemnified as and to the
extent provided in subsection (d) of this section for a director
and shall be entitled, to the same extent as a director, to seek
indemnification pursuant to the provisions of subsection (d);
(2) A corporation may indemnify and advance expenses to an officer,
employee, or agent of the corporation to the same extent that it
may indemnify directors under this section; and
(3) A corporation, in addition, may indemnify and advance expenses to
an officer, employee, or agent who is not a director to such
further extent, consistent with law, as may be provided by its
charter, bylaws, general or specific action of its board of
directors, or contract.
(k) INSURANCE. A corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee, or agent of
the corporation, or who, while a director, officer, employee, or agent
of the corporation, is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
other enterprise, or employee benefit plan against any liability
asserted against and incurred by such person in any such capacity or
arising out of such person's position, whether or not the corporation
would have the power to indemnify against liability under the provisions
of this section.
(l) REPORT OF INDEMNIFICATION TO STOCKHOLDERS. Any indemnification of, or
advance of expenses to, a director in accordance with this section, if
arising out of a proceeding by or in the right of the corporation, shall
be reported in writing to the stockholders with the notice of the next
stockholders' meeting or prior to the meeting.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on Page E-1 of this Registration Statement, which Index is
incorporated herein by reference.
Item 9. Undertakings.
The Company 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective 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, Form S-8 or Form F-3 and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in 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 from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
4. The Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company'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 therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to partners, directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company 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
the Company of expenses incurred or paid by a partner, director, officer or
controlling person of the Company in the successful defense of any action suit
or proceeding) is asserted by such partner, director, officer or controlling
person in connection with the securities being registered, the Company 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
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 Murfreesboro, State of Tennessee, on July 31, 1998.
National Health Realty, Inc.
By: /s/ W. Andrew Adams
W. Andrew Adams
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature to the Registration statement appears below
hereby appoints W. Andrew Adams or Richard F. LaRoche, Jr. and each of them,
any one of whom may act without the joinder of the others, as his attorney-in-
fact to execute in the name and behalf of any such person, individually and in
the capacity stated below, and to file all amendments and post-effective
amendments to this Registration Statement, which amendment or amendments may
make such changes and additions in this Registration Statement as such
attorney-in-fact may deem necessary or appropriate.
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.
Signature Title Date
/s/ W. Andrew Adams Chairman of the Board, President July 31, 1998
W. Andrew Adams and Chief Executive Officer
/s/ Donald K. Daniel Vice President and Chief July 31, 1998
Donald K. Daniel Financial Officer
/s/ Robert G. Adams Director July 31, 1998
Robert G. Adams
/s/ Olin O. Williams, Director July 31, 1998
M.D.
Olin O. Williams, M.D.
/s/ J.K. Twilla, M.D. Director July 31, 1998
J.K. Twilla, M.D.
/s/ Ernest G. Burgess Director July 31, 1998
Ernest G. Burgess
Exhibit Index
Exhibit No. Description of Exhibit
4.1 Certificate of Incorporation of Company (incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement
No. 333-37173 on Form S-4)
4.2 By-Laws of Company (incorporated by reference to Exhibit 3.2
to the Company's Registration Statement No. 333-37173 on Form
S-4)
4.3 1997 Stock Option and Stock Appreciation Rights Plan
(incorporated by reference to Exhibit 10.3.2 to the Company's
Registration Statement No. 333-37173 on Form S-4)
5 Opinion of Harwell Howard Hyne Gabbert & Manner, P.C.
23 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.1 Consent of Harwell Howard Hyne Gabbert & Manner, P.C.
(contained in Exhibit 5)
24 Power of Attorney (see signature page)
HARWELL HOWARD HYNE
GABBERT & MANNER, P.C.
1800 FIRST AMERICAN CENTER
315 DEADERICK STREET
NASHVILLE, TENNESSEE 37238-1800
-------------------------------------
TELEPHONE (615) 256-0500
FACSIMILE (615) 251-1059
August 10, 1998
National Health Realty, Inc.
100 Vine Street
Murfreesboro, Tennessee 37130
Ladies and Gentlemen:
We have acted as special counsel to National Health Realty, Inc. (the
"Company") in connection with the registration of the Company's 1997 Stock
Option and Stock Appreciation Rights Plan pursuant to a registration
statement on Form S-8, as filed with the Securities and Exchange Commission
(the "Registration Statement"). This firm hereby consents to the filing of
this opinion as an exhibit to the Registration Statement and with agencies of
such states and other jurisdictions as may be necessary in the course of
complying with the laws of such states and jurisdictions regarding the
offering and sale of the stock in accordance with the Registration Statement.
We have examined originals, or certified or photostatic copies of such
statutes, records, regulations, certificates of the officers of the Company
and of public officials, and such other information as we have deemed
necessary for purposes of rendering this opinion.
In stating our opinion, we have assumed: (i) that all signatures are
genuine, all documents submitted to us as originals are authentic, and all
documents submitted to us as copies conform to authentic original documents;
and (ii) that the parties to such documents have the legal right and power
under all applicable laws, regulations and agreements to enter into, execute,
deliver and perform their respective obligations thereunder.
On the basis of such review, but subject to the limitations expressed
herein, we are of the opinion, as of the date hereof, that the securities
being registered by the Registration Statement will, when sold as contemp-
lated under the Registration Statement, be legally issued, fully paid and
non-assessable.
Our opinion herein is limited solely to the laws of the United States of
America and the corporate law of the State of Maryland. In rendering the
opinion set forth herein, we have relied upon the documents referenced above
and have made no independent verification or investigation of factual matters
pertaining thereto or to the Company. The opinion expressed herein is
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws now or hereafter in effect relating
to or affecting the rights of creditors generally, judicial discretion, and
equitable principles whether applied pursuant to a proceeding at law or in
equity; and no opinion is expressed with respect to the availability of
equitable remedies.
Very truly yours,
HARWELL HOWARD HYNE
GABBERT & MANNER, P.C.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accounts, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of National Health
Realty, Inc. of our report dated February 12, 1998 included in National
Health Realty, Inc. and Subsidiaries Form 10-K for the year ended December
31, 1997 and to all references to our Firm included in or incorporated by
reference in this registration statement.
ARTHUR ANDERSEN LLP
Nashville, Tennessee
August 14, 1998
