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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMERICAN RETIREMENT CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
Tennessee 62-1674303
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
111 Westwood Place, Suite 402, Brentwood, Tennessee 37027
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant effective to General
Instruction A.(c), please check the following box. [X]
If this form relates to the registration of a class of securities pursuant to
Section 12(g)of the Exchange Act and is pursuant to General Instruction A.(d),
please check the following box. [ ]
Securities Act registration statement file number to which this form relates:
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(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of Each Exchange on Which
Title of Each Class to be Registered Each Class is to be Registered
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Series A Junior Preferred Stock Purchase New York Stock Exchange
Rights
Securities to be registered pursuant to Section 12(g) of the Act:
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(Title of class)
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Item 1. Description of Registrant's Securities to be Registered
On November 18, 1998, the Board of Directors of American Retirement
Corporation (the "Company") declared a distribution of one stock purchase right
(a "Right") for each outstanding share of the Company's common stock, par value
$.01 per share (the "Company Common Stock"), to shareholders of record at the
close of business on December 7, 1998 and for each share of Company Common Stock
issued thereafter and prior to the Distribution Date (as hereinafter defined).
Each Right entitles the registered holder, subject to the terms of the Rights
Agreement (as defined below), to purchase from the Company one one-hundredth of
a share (a "Unit") of Series A Junior Preferred Stock, no par value (the
"Preferred Stock"), at a purchase price of $86.25 per Unit (the "Purchase
Price"), subject to adjustment. The Purchase Price is payable in cash or by
certified or bank check or bank draft payable to the order of the Company. The
description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and American Stock Transfer and Trust
Company, as Rights Agent, dated November 18, 1998.
Initially, the Rights will attach to all certificates representing
shares of outstanding Company Common Stock, and no separate Rights Certificates
will be distributed. The Rights will separate from the Company Common Stock, and
the Distribution Date will occur, upon the earlier of (i) ten days following a
public announcement (the date of such announcement being the "Stock Acquisition
Date") that a person or group of affiliated or associated persons (other than
the Company, any Subsidiary of the Company or any employee benefit plan of the
Company or any such Subsidiary) (an "Acquiring Person") has acquired, obtained
the right to acquire, or otherwise obtained beneficial ownership of 15% or more
of the then outstanding shares of Company Common Stock, or (ii) ten days (or
such later date as may be determined by the Board of Directors prior to such
time as any Person becomes an Acquiring Person) following the commencement of a
tender offer or exchange offer that would result in a person or group
beneficially owning 15% or more of the then outstanding shares of Company Common
Stock. Until the Distribution Date, (i) the Rights will be evidenced by Company
Common Stock certificates and will be transferred with and only with such
Company Common Stock certificates, (ii) new Company Common Stock certificates
issued after December 7, 1998 will contain a notation incorporating the Rights
Agreement by reference, and (iii) the surrender for transfer of any certificates
representing outstanding Company Common Stock will also constitute the transfer
of the Rights associated with the Company Common Stock represented by such
certificate.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on the tenth anniversary of the Rights Agreement
unless earlier redeemed by the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of Company Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights.
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Upon the occurrence of the Distribution Date, each holder of a Right
will thereafter have the right to receive, upon exercise, shares of Company
Common Stock (or, in certain circumstances, at the discretion of the Company's
Board of Directors cash, property, other securities of the Company or other
consideration) having a value equal to two times the exercise price of the
Right. The exercise price is the Purchase Price multiplied by the number of
Units of Preferred Stock issuable upon exercise of a Right prior to the events
described in this paragraph. Notwithstanding any of the foregoing, following the
occurrence of any of the events set forth in this paragraph, all Rights that
are, or (under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person will be null and void.
In the event that, at any time following the Stock Acquisition Date,
(i) the Company is acquired in a merger or other business combination
transaction and the Company is not the surviving corporation, (ii) any Person
effects a share exchange or merges with the Company and all or part of the
Company Common Stock is converted or exchanged for securities, cash or property
of any other Person or (iii) 50% or more of the Company's assets or earning
power is sold or transferred, each holder of a Right (except Rights which
previously have been voided as described above) shall thereafter have the right
to receive, upon exercise, common stock of the Acquiring Person having a value
equal to two times the exercise price of the Right.
The Purchase Price payable, and the number of shares of Company Common
Stock issuable, upon exercise of the Rights are subject to adjustment from time
to time to prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Preferred Stock, (ii) if
holders of the Preferred Stock are granted certain rights or warrants to
subscribe for Preferred Stock or convertible securities at less than the current
market price of the Preferred Stock, or (iii) upon the distribution to the
holders of the Preferred Stock of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription rights or warrants (other
than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. The Company is not required to issue fractional Units. In lieu thereof,
an adjustment in cash may be made based on the fair market value of the
Preferred Stock prior to the date of exercise.
At any time until ten days following the Stock Acquisition Date, the
Board of Directors may redeem the Rights in whole, but not in part, at a price
of $.001 per Right (the "Redemption Price"), payable, at the election of the
Board of Directors, in cash or shares of Company Common Stock. Immediately upon
the action of the Board of Directors ordering the redemption of the Rights, the
Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price. Until a Right is exercised, the holder thereof, as
such, will have no rights as a shareholder of the Company, including, without
limitation, the right to vote or to receive dividends. While the distribution of
the Rights will not be taxable to shareholders or to the Company, shareholders
may, depending upon the circumstances, recognize taxable income in the event
that the Rights become exercisable for shares of Company Common Stock (or other
consideration).
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At any time after any person becomes an Acquiring Person, the Board of
Directors may exchange the Rights (other than Rights owned by such Acquiring
Person which have become void), in whole or in part, at an exchange ratio of one
share of Company Common Stock per Right. Notwithstanding the foregoing, the
Board of Directors shall not be empowered to effect such exchange at any time
after such Acquiring Person becomes the beneficial owner of 50% or more of the
shares of Company Common Stock then outstanding.
Any of the provisions of the Rights Agreement may be supplemented or
amended at any time prior to the Distribution Date without the consent of the
holders of the Rights. After the Distribution Date, the provisions of the Rights
Agreement may be supplemented or amended without the consent of the holders of
the Rights in order to cure any ambiguity, defect or inconsistency, to make
changes which are consistent with the objectives of the Board in adopting the
Rights Agreement, except that from and after such time as any person becomes an
Acquiring Person, no such amendment may adversely affect the interests of
holders of Rights, or to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust the time period
governing redemption shall be made at such time as the Rights are not
redeemable.
As of November 18, 1998, 17,109,621 shares of Company Common Stock were
issued and outstanding. Each outstanding share of Company Common Stock on
December 7, 1998 will receive one Right. As long as the Rights are attached to
the Company Common Stock, the Company will issue one Right for each share of
Company Common Stock issued between the Record Date and the Distribution Date. A
total of 2,000,000 shares of Preferred Stock have been reserved for issuance
upon exercise of the Rights, subject to adjustment.
The Units of Preferred Stock that may be acquired upon exercise of the
Rights will be nonredeemable and subordinate to any other shares of preferred
stock that may be issued by the Company.
Each Unit of Preferred Stock will be entitled to receive, when, as and
if declared, dividends at the same rate as dividends are paid with respect to
the Common Stock.
In the event of liquidation, the holder of a Unit of Preferred Stock
will be entitled to share in any assets remaining ratably with the holders of
the Common Stock.
Each Unit of Preferred Stock will have one vote, voting together with
the Company Common Stock.
In the event of any merger, share exchange or other transaction in
which shares of Company Common Stock are exchanged, each Unit of Preferred Stock
will be entitled to receive the per share amount paid in respect of each share
of Company Common Stock.
The rights of holders of the Preferred Stock to dividends, liquidation
and voting, and in the event of mergers and share exchanges, are protected by
customary antidilution provisions.
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Because of the nature of the Preferred Stock's dividend, liquidation
and voting rights, the economic value of one Unit of Preferred Stock that may be
acquired upon the exercise of each Right should approximate the economic value
of one share of Company Common Stock.
The Rights may have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire the
Company on terms not approved by a majority of the Board of Directors unless the
offer is conditioned on a substantial number of Rights being acquired. However,
the Rights should not interfere with any merger or other business combination
approved by the Board of Directors since the Rights may be redeemed by the
Company at $.001 per Right at any time on or prior to the tenth day following
the Stock Acquisition Date. Thus, the Rights are intended to encourage persons
who may seek to acquire control of the Company to initiate such an acquisition
through negotiations with the Board of Directors. However, the effect of the
Rights may be to discourage a third party from making a partial tender offer or
otherwise attempting to obtain a substantial equity position in the equity
securities of, or seeking to obtain control of, the Company. To the extent any
potential acquirors are deterred by the Rights, the Rights may have the effect
of preserving incumbent management in office.
The form of Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights, which includes as Exhibit A the form of
Rights Certificate, is filed as Exhibit 1 and is incorporated herein by
reference. The foregoing description of the Rights does not purport to be
complete and is qualified in its entirety by reference to such Exhibit.
Item 2. Exhibits
1. Rights Agreement, dated November 18, 1998, between American
Retirement Corporation and American Stock Transfer and Trust
Company, including the Form of Rights Certificate (Exhibit A)
and the Form of Summary of Rights (Exhibit B) is incorporated
herein by reference to Exhibit 99.2 to the Company's Current
Report on Form 8-K filed with the Securities and Exchange
Commission on November 24, 1998.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
AMERICAN RETIREMENT CORPORATION
By: /s/ W. E. Sheriff
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Name: W.E. Sheriff
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Title: Chief Executive Officer
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Dated: November 23, 1998
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EXHIBIT INDEX
1. Rights Agreement, dated November 18, 1998, between American Retirement
Corporation and American Stock Transfer and Trust Company, including
the Form of Rights Certificate (Exhibit A) and the Form of Summary of
Rights (Exhibit B) is incorporated herein by reference to Exhibit 99.2
to the Company's Current Report on Form 8-K filed with the Securities
and Exchange Commission on November 24, 1998.
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