-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MzBUe9vBFcvL5V/pWs3FHj/SPypvXxCRhg6Gvt7X3fTEM0KRRS5li81WppU7z80u XbHopoDKeyNEm5baQiMM+w== 0001157523-06-002161.txt : 20060301 0001157523-06-002161.hdr.sgml : 20060301 20060301172506 ACCESSION NUMBER: 0001157523-06-002161 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20060301 DATE AS OF CHANGE: 20060301 EFFECTIVENESS DATE: 20060301 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN RETIREMENT CORP CENTRAL INDEX KEY: 0000787784 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SKILLED NURSING CARE FACILITIES [8051] IRS NUMBER: 621674303 STATE OF INCORPORATION: TN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-132144 FILM NUMBER: 06656886 BUSINESS ADDRESS: STREET 1: 111 WESTWOOD PLACE STREET 2: SUITE 202 CITY: BRENTWOOD STATE: TN ZIP: 37027 BUSINESS PHONE: 6152212250 S-8 1 a5092419.txt AMERICAN RETIREMENT CORPORATION S-8 As filed with the Securities and Exchange Commission on March 1, 2006. 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 62-1674303 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 111 Westwood Place, Suite 200 Brentwood, Tennessee 37027 (Address of Principal Executive Offices) (Zip Code) AMERICAN RETIREMENT CORPORATION 1997 STOCK INCENTIVE PLAN, AS AMENDED (Full Title of the Plan) W. E. Sheriff 111 Westwood Place, Suite 200 Brentwood, Tennessee 37027 (Name and Address of Agent For Service) (615) 221-2250 (Telephone Number, Including Area Code, of Agent For Service) CALCULATION OF REGISTRATION FEE - -------------------------------------------------------------------------------- Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of To Be To be Price Per Offering Registration Registered Registered Share* Price* Fee - -------------------------------------------------------------------------------- Common Stock, par 2,354,975 value $.01 per share shares $26.84 $63,207,529 $6,764 - -------------------------------------------------------------------------------- * The offering price is estimated solely for the purpose of determining the amount of the registration fee. Such estimate has been calculated in accordance with Rule 457(c) and Rule 457(h) and is based upon the average of the high and low prices per share of the Registrant's Common Stock as reported on the New York Stock Exchange Composite Transactions tape for February 24, 2006. This Registration Statement is filed pursuant to General Instruction E of Form S-8 for the purpose of registering additional shares of common stock, par value $.01 per share (the "Common Stock"), of American Retirement Corporation, a Tennessee corporation (the "Registrant"), issuable pursuant to the American Retirement Corporation 1997 Stock Incentive Plan, as amended (the "Plan"). The Registrant's previously filed Registration Statements on Form S-8 (Nos. 333-28657, 333-66821 and 333-94747), as filed with the Securities and Exchange Commission (the "Commission") on June 6, 1997, November 5, 1998 and January 14, 2000 respectively, are hereby incorporated herein by reference. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents previously filed by the Registrant with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated herein by reference: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2005; (b) The Registrant's Current Reports on Form 8-K filed on January 13, 2006, January 20, 2006, February 7, 2006 and February 24, 2006; (c) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A filed on 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 (d) The description of the Registrant's Common Stock purchase rights contained in the Registration Statement on Form 8-A filed on November 25, 1998, 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. Information furnished under Items 2.02 and 7.01 of the Registrant's Current Reports on Form 8-K, including the related exhibits, is not incorporated by reference in this Registration Statement. All reports and other 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 that indicates that all securities offered hereby have been sold or that 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 superseded for purposes hereof to the extent that a statement contained herein, or in any other subsequently filed document that also is incorporated or is 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. II-1 Item 8. Exhibits. 5 Opinion of Bass, Berry & Sims PLC. 10 1997 Stock Incentive Plan, as amended (incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2001). 23.1 Consent of Bass, Berry & Sims PLC (included in Exhibit 5). 23.2 Consent of KPMG LLP. 24 Powers of Attorney (included at pages II-3 and II-4). II-2 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Brentwood, State of Tennessee, on this 1st day of March, 2006. AMERICAN RETIREMENT CORPORATION By: /s/ W.E. Sheriff ----------------------------------------- Name: W.E. Sheriff Title: Chairman, Chief Executive Officer and President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears below hereby constitutes and appoints W. E. Sheriff and Bryan D. Richardson, or either of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including without limitation, post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent 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 or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, 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, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signature Capacity Date - --------- -------- ---- /s/ W. E. Sheriff Chairman, Chief Executive March 1, 2006 - ----------------------- Officer, President and Director W. E. Sheriff (Principal Executive Officer) /s/ Bryan D. Richardson Executive Vice President - Finance March 1, 2006 - ----------------------- and Chief Financial Officer Bryan D. Richardson (Principal Financial and Accounting Officer) /s/ Frank M. Bumstead Director March 1, 2006 - ----------------------- Frank M. Bumstead /s/ Donald D. Davis Director March 1, 2006 - ----------------------- Donald D. Davis II-3 /s/ John C. McCauley Director March 1, 2006 - ----------------------------- John C. McCauley /s/ John A. Morris, Jr., M.D. Director March 1, 2006 - ----------------------------- John A. Morris, Jr., M.D. /s/ Daniel K. O'Connell Director March 1, 2006 - ----------------------------- Daniel K. O'Connell /s/ J. Edward Pearson Director March 1, 2006 - ----------------------------- J. Edward Pearson /s/ James R. Seward Director March 1, 2006 - ----------------------------- James R. Seward /s/ Nadine C. Smith Director March 1, 2006 - ----------------------------- Nadine C. Smith /s/ Lawrence J. Stuesser Director March 1, 2006 - ----------------------------- Lawrence J. Stuesser II-4 EXHIBIT INDEX Exhibit Number Exhibit Description ------- ------------------- 5 Opinion of Bass, Berry & Sims PLC. 10 1997 Stock Incentive Plan, as amended (incorporated by reference to the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 2001). 23.1 Consent of Bass, Berry & Sims PLC (included in Exhibit 5). 23.2 Consent of KPMG LLP. 24 Powers of Attorney (included at pages II-3 and II-4). II-5 EX-23.1 2 a5092419ex23_1.txt EXHIBIT 23.1 BASS, BERRY & SIMS PLC A PROFESSIONAL LIMITED LIABILITY COMPANY ATTORNEYS AT LAW KNOXVILLE OFFICE DOWNTOWN OFFICE: 900 SOUTH GAY STREET, SUITE 1700 AMSOUTH CENTER KNOXVILLE, TN 37902 315 DEADERICK STREET, SUITE 2700 (865) 521-6200 NASHVILLE, TN 37238-3001 (615) 742-6200 Reply To: AMSOUTH CENTER 315 DEADERICK STREET, SUITE 2700 NASHVILLE, TN 37238-3001 (615) 742-6200 www.bassberry.com MEMPHIS OFFICE THE TOWER AT PEABODY PLACE MUSIC ROW OFFICE: 100 PEABODY PLACE, SUITE 950 29 MUSIC SQUARE EAST MEMPHIS, TN 38103-2625 NASHVILLE, TN 37203-4322 (901) 543-5900 (615) 255-6161 March 1, 2006 American Retirement Corporation 111 Westwood Place, Suite 200 Brentwood, Tennessee 37027 Re: Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as your counsel in the preparation of a Registration Statement on Form S-8 (the "Registration Statement") relating to the American Retirement Corporation 1997 Stock Incentive Plan, as amended (the "Plan"), to be filed by you with the Securities and Exchange Commission, covering 2,354,975 additional shares (the "Shares") of common stock, par value $.01 per share, issuable pursuant to the Plan. 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 opinion 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 the original documents of all documents submitted to us as certified or photostatic copies. Based upon the foregoing, we are of the opinion that the Shares, when issued pursuant to and in accordance with the Plan, will be duly and 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 EX-23.2 3 a5092419ex23_2.txt EXHIBIT 23.2 Consent of Independent Registered Public Accounting Firm The Board of Directors American Retirement Corporation We consent to incorporation by reference in the Registration Statement on Form S-8 of American Retirement Corporation filed March 1, 2006 to register 2,354,975 shares of American Retirement Corporation common stock, issuable pursuant to the American Retirement Corporation 1997 Stock Incentive Plan, as amended, of our reports dated February 24, 2006 with respect to the consolidated financial statements and all related schedules, management's assessment of the effectiveness of internal control over financial reporting, and the effectiveness of internal control over financial reporting, which reports appear in the Annual Report on Form 10-K dated February 27, 2006. /s/ KPMG LLP Nashville, Tennessee March 1, 2006 1 -----END PRIVACY-ENHANCED MESSAGE-----