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As filed with the Securities and Exchange Commission on June 26, 2000
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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AMERICAN RETIREMENT CORPORATION
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(Exact name of registrant as specified in its charter)
TENNESSEE
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(State or other jurisdiction of incorporation or organization)
62-16474303
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(I.R.S. employer identification no.)
111 WESTWOOD PLACE, SUITE 402
BRENTWOOD, TENNESSEE 37027
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(Address of principal executive offices)
AMERICAN RETIREMENT CORPORATION
401(k) RETIREMENT PLAN
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(Full title of the plan)
W. E. SHERIFF
111 WESTWOOD PLACE, SUITE 402
BRENTWOOD, TENNESSEE 37027
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(Name and address of agent for service)
(615) 221-2250
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE AMOUNT OF
TO BE REGISTERED* REGISTERED SHARE** OFFERING PRICE** REGISTRATION FEE
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<S> <C> <C> <C> <C>
COMMON STOCK 500,000 SHARES $5.5625 $2,781,250 $735
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* In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
** 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 is 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 June 20, 2000.
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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 (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference:
(1) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1999;
(2) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2000;
(3) The description of the Registrant's 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; and
(4) The description of the Registrant's Common Stock purchase
rights contained in the Registration Statement on Form 8-A,
dated November 23, 1998, including 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 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 statement 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 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.
Not applicable.
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 best interests of the corporation, and (iii) in connection
with any criminal proceeding, the director or officer had
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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 Charter and Bylaws of the Registrant 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 any of 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
Registrant 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 Registrant has purchased a directors and officers insurance policy
providing for $10.0 million in coverage for certain liabilities of the
Registrant's directors and officers. The policy expires July 1, 2000.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index (Page II-7) and Item 9.D. below.
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 to: (i) include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, as
amended (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; (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 clauses (i) and (ii) of this paragraph do not
apply if the information required to be included in a post-effective amendment
by those clauses is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 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.
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(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that 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 (and 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 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.
D. The Registrant hereby undertakes that, in lieu of an opinion of
counsel concerning compliance with the requirements of ERISA and an Internal
Revenue Service ("IRS") determination letter that the Plan is qualified under
Section 401 of the Internal Revenue Code (the "Code"), the Registrant has
submitted or will submit the Plan and any amendment thereto to the IRS in a
timely manner and has made or will make all changes required by the IRS in order
to qualify the Plan under Section 401 of the Code.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 26th day of
June, 2000.
AMERICAN RETIREMENT CORPORATION
By: /s/ W. E. Sheriff
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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, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ W. E. Sheriff Chairman and Chief Executive June 26, 2000
--------------------------------- Officer (Principal Executive
W. E. Sheriff Officer)
/s/ George T. Hicks Executive Vice President - June 26, 2000
--------------------------------- Finance
George T. Hicks Chief Financial Officer (Principal
Financial and Accounting Officer)
/s/ H. Lee Barfield II Director June 26, 2000
---------------------------------
H. Lee Barfield II
Director
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Frank M. Bumstead
/s/ Christopher J. Coates Director June 26, 2000
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Christopher J. Coates
Director
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Robin G. Costa
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Signature Title Date
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<S> <C> <C>
/s/ Clarence Edmonds Director June 26, 2000
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Clarence Edmonds
/s/ John A. Morris, Jr., M.D. Director June 26, 2000
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John A. Morris, Jr., M.D.
/S/ Daniel K. O'Connell Director June 26, 2000
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Daniel K. O'Connell
Director
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Robert G. Roskamp
Director
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Nadine C. Smith
/s/ Laurence J. Stuesser Director June 26, 2000
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Laurence J. Stuesser
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Pursuant to the requirements of the Securities Act, the Trustee of the
American Retirement Corporation 401(k) Retirement Plan has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Nashville, Tennessee on June 26, 2000.
AMERICAN RETIREMENT CORPORATION
401(k) RETIREMENT PLAN
By: SUNTRUST BANK, NASHVILLE, N. A.
By: /s/ Kelley Haynes
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Name: Kelley Haynes
Title: Vice President and Trust Officer
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EXHIBIT INDEX
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Exhibit Number Description
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4.1 Article 8 of the Registrant's Charter(1)
4.2 Bylaws of the Registrant, as amended(2)
4.3 Rights Agreement, dated November 18, 1998, between the
Registrant and American Stock Transfer and Trust Company(3)
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
23.2 Consent of KPMG LLP
24 Power of Attorney (included on Page II-4)
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(1) Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (Registration No. 333-23197).
(2) Incorporated by reference to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1998.
(3) Incorporated by reference to the Registrant's Current Report on Form 8-K,
dated November 24, 1998.
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