<PAGE> 1
As filed with the Securities and Exchange Commission on June 6, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
AMERICAN RETIREMENT CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
TENNESSEE
--------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
62-16474303
------------------------------------
(I.R.S. employer identification no.)
111 WESTWOOD PLACE, SUITE 402
BRENTWOOD, TENNESSEE 37027
----------------------------------------
(Address of principal executive offices)
AMERICAN RETIREMENT CORPORATION
1997 STOCK INCENTIVE PLAN AND EMPLOYEE STOCK PURCHASE PLAN
----------------------------------------------------------
(Full title of the plan)
W. E. SHERIFF
111 WESTWOOD PLACE, SUITE 402
BRENTWOOD, TENNESSEE 37027
---------------------------------------
(Name and address of agent for service)
(615) 221-2250
-------------------------------------------------------------
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM OFFERING MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE PRICE PER SHARE(*) AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK 1,390,625 SHARES $14.00 - $15.1875 $20,366,055 $6,172
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
* With respect to 635,000 shares which are covered by outstanding stock
options, the offering price is computed on the basis of the exercise prices
with respect to such options in accordance with Rule 457(h) under the
Securities Act of 1933, as amended (the "Securities Act"). With respect to
the balance of 755,625 shares registered pursuant hereto, the offering price
is estimated solely for the purpose of determining the amount of the
registration fee in accordance with Rule 457(c) under the Securities Act and
are based on the average of the high and low price per share of the
Registrant's Common Stock as reported on The New York Stock Exchange on May
30, 1997.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by American Retirement Corporation
(the "Registrant") with the Securities and Exchange Commission are hereby
incorporated by reference:
(1) The Registrant's Final Prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"), in
connection with the Registrant's Registration Statement on Form S-1
(Registration No. 333-23197); and
(2) The description of the Registrant's Common Stock, par value $.01 per
share (the "Common Stock"), contained in the Registration Statement on
Form 8-A, dated May 22, 1997, including all 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 filed by the Registrant pursuant to Sections 13(a), 13(c), 14,
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date hereof 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 herein and to
be a part hereof from the date of filing of such documents. Any statements
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or replaced for purposes hereof to the
extent that a statement contained herein (or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein) modifies or replaces such statement. Any statement so modified or
replaced shall not be deemed, except as so modified or replaced, to constitute
a part hereof.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock registered hereby will be passed
upon for the Registrant by Bass, Berry & Sims PLC, Nashville, Tennessee. H. Lee
Barfield II, a member of Bass, Berry & Sims PLC, is a director of the
Registrant. Mr. Barfield and his wife and children beneficially own 617,661
shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
The Tennessee Business Corporation Act ("TBCA") provides that a corporation
may indemnify any director or officer against liability incurred in connection
with a proceeding if (i) the director or officer acted in good faith, (ii) the
director or officer reasonably believed, in the case of conduct in his or her
official capacity with the corporation, that such conduct was in the
corporation's best interest, or, in all other cases, that his or her conduct
was not opposed to the
II-1
<PAGE> 3
best interest of the corporation, and (iii) in connection with any criminal
proceeding, the director or officer had no reasonable cause to believe that his
or her conduct was unlawful. In actions brought by or in the right of the
corporation, however, the TBCA provides that no indemnification may be made if
the director or officer is adjudged to be liable to the corporation. Similarly,
the TBCA prohibits indemnification in connection with any proceeding charging
improper personal benefit to a director or officer, if such director or officer
is adjudged liable on the basis that a personal benefit was improperly
received. In cases where the director or officer is wholly successful, on the
merits or otherwise, in the defense of any proceeding instigated because of his
or her status as a director or officer of a corporation, the TBCA mandates that
the corporation indemnify the director or officer against reasonable expenses
incurred in the proceeding. Notwithstanding the foregoing, the TBCA provides
that a court of competent jurisdiction, upon application, may order that a
director or officer be indemnified for reasonable expenses if, in consideration
of all relevant circumstances, the court determines that such individual is
fairly and reasonably entitled to indemnification, whether or not the standard
of conduct set forth above was met.
The Registrant's Charter and Bylaws provide that the Registrant will
indemnify from liability, and advance expenses to, any present or former
director or officer of the Registrant to the fullest extent allowed by the
TBCA, as amended from time to time, or any subsequent law, rule, or regulation
adopted in lieu thereof. Additionally, the Charter provides that no director of
the Registrant will be personally liable to the Registrant or its shareholders
for monetary damages for breach of any fiduciary duty except for liability
arising from (i) any breach of a director's duty of loyalty to the Company or
its shareholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) any unlawful
distributions, or (iv) receiving any improper personal benefit.
The Company has purchased a directors and officers insurance policy
providing for $10.0 million in coverage for certain liabilities of the
Company's directors and officers. The policy expires in May 2000.
Item 7. Exemption from Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index (page II-6).
Item 9. Undertakings.
A. The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
II-2
<PAGE> 4
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove 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 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 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 Securities and Exchange
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.
II-3
<PAGE> 5
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 Nashville, State of Tennessee, on the 6th day
of June, 1997.
AMERICAN RETIREMENT CORPORATION
By: /s/ W. E. Sheriff
------------------------------------
W. E. Sheriff
Chairman and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints W. E. Sheriff and George T. Hicks, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place, and stead,
in any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, 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 said
attorneys-in-fact and agents, 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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ W. E. Sheriff Chairman and Chief June 6, 1997
- ---------------------------------- Executive Officer (Principal
W. E. Sheriff Executive Officer)
/s/ George T. Hicks Executive Vice President - June 6, 1997
- ---------------------------------- Finance
George T. Hicks Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ H. Lee Barfield II Director June 6, 1997
- ----------------------------------
H. Lee Barfield II
/s/ Jack O. Bovender, Jr. Director June 6, 1997
- ----------------------------------
Jack O. Bovender, Jr.
/s/ Frank M. Bumstead Director June 6, 1997
- ----------------------------------
Frank M. Bumstead
</TABLE>
II-4
<PAGE> 6
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robin G. Costa Director June 6, 1997
- ---------------------------------
Robin G. Costa
/s/ Clarence Edmonds Director June 6, 1997
- ---------------------------------
Clarence Edmonds
/s/ John A. Morris, Jr. Director June 6, 1997
- ---------------------------------
John A. Morris, Jr., M.D.
Director
- ---------------------------------
Daniel K. O'Connell, Esq.
/s/ Nadine C. Smith Director June 6, 1997
- ---------------------------------
Nadine C. Smith
/s/ Laurence J. Stuesser Director June 6, 1997
- ---------------------------------
Laurence J. Stuesser
</TABLE>
II-5
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4.1 American Retirement Corporation 1997 Stock Incentive Plan
(incorporated by reference to the Registrant's Registration
Statement on Form S-1 (Registration Statement No. 333-
23197))
4.2 American Retirement Corporation Employee Stock Purchase
Plan (incorporated by reference to the Registrant's
Registration Statement on Form S-1 (Registration Statement
No. 333-23197))
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included on Page II-4)
</TABLE>
II-6
<PAGE> 1
EXHIBIT 5
[BASS, BERRY & SIMS PLC LETTERHEAD]
June 6, 1997
American Retirement Corporation
111 Westwood Place, Suite 402
Brentwood, Tennessee 37027
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as your counsel in prepartion of a Registration Statement on
Form S-8 (the "Registration Statement") relating to the American Retirement
Corporation 1997 Stock Incentive Plan and Employee Stock Purchase Plan (the
"Plans") filed by you with the Securities and Exchange Commission covering
1,390,625 shares (the "Shares") of common stock, par value $.01 per share,
issuable pursuant to the Plans.
In so acting, we have examined and relied upon such records, documents, and
other instruments as in our judgment are necessary or appropriate in order to
express the opinions hereinafter set forth and have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies.
Based on the foregoing, we are of the opinion that the Shares, when issued
pursuant to and in accordance with the Plans, will be validly issued, fully
paid, and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
--------------------------
Bass, Berry, Sims PLC
<PAGE> 1
EXHIBIT 23.2
The Board of Directors
American Retirement Corporation:
We consent to the use of our reports incorporated herein by reference.
KPMG Peat Marwick LLP
Nashville, Tennessee
June 6, 1997
