AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 13, 1998 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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ASSISTED LIVING CONCEPTS, INC.
NEVADA 93-1148702
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
9955 S.E. WASHINGTON, SUITE 201
PORTLAND, OREGON 97216
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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THE AMENDED AND RESTATED 1994 STOCK OPTION PLAN
THE NON-EXECUTIVE EMPLOYEE EQUITY PARTICIPATION PLAN
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COPY TO:
SANDRA CAMPBELL, ESQ. GARY OLSON, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL LATHAM & WATKINS
9955 S.E. WASHINGTON, SUITE 201 633 WEST FIFTH STREET, SUITE 4000
PORTLAND, OREGON 97216 LOS ANGELES, CALIFORNIA 90071
(503) 252-6233 (213) 485-1234
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
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PROPOSED
AMOUNT PROPOSED MAXIMUM
OF SHARES MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE (1) PRICE (1) FEE
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Common Stock $.01 par value 1,508,000 $17.8125 $26,861,250 $7,924.07
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(1) Estimated based on a bona fide estimate of the maximum offering price of
solely for the purpose of calculating the registration fee pursuant to Rule
457(a) of the Securities Act of 1933, as amended.
PART I
Item 1. Plan Information
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information
Not required to be filed with this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Assisted Living Concepts, Inc., a Nevada
corporation (the "Company' and the "Registrant"), are incorporated as of their
respective dates in this Registration Statement by reference:
(a) The Annual Report of the Company on Form 10-K for its fiscal year
ended December 31, 1997;
(b) The Quarterly Report of the Company on Form 10-Q for the fiscal
quarter ended March 31, 1998; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A/2 filed with the
Commission on November 22, 1994.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (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, are incorporated by reference in this Registration Statement
and are a part hereof from the date of filing 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 so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
The Company's Articles of Incorporation provide that a director or
officer of the Company shall not be personally liable to the Company or its
stockholders for damages for any breach of fiduciary duty as a director or
officer, except for liability for (I) acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law, or (ii) the payment
of distributions in violation of Nevada Revised Statutes 78.300. In addition,
Nevada Revised Statutes 78.751 and Article III, Section 13 of the Company's
Bylaws, under certain circumstances, provide for the indemnification of the
Company's officers, directors, employees, and agents against liabilities which
they may incur in such capacities. A summary of the circumstances in which such
indemnification is provided for is contained herein, but that description is
qualified in its entirety by reference to Article III, Section 13 of the
Company's Bylaws.
In general, any officer, director, employee or agent shall be
indemnified against expenses including attorneys' fees, fines, settlements, or
judgments which were actually and reasonably incurred in connection with a legal
proceeding, other than one brought by or on behalf of the Company, to which he
was a party as a result of such relationship, if he acted in good faith, and in
the manner he believed to be in or not opposed to the Company's best interest
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. If the action or suit is brought by or on
behalf of the Company, the person to be indemnified must have acted in good
faith and in a manner be reasonably believed to be in or not opposed to the
Company's best interest. No indemnification will be made in respect of any
claim, issue or matter as to which such person shall have been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the Company or for amounts paid in settlement to the Company,
unless and only to the extent that the court in which the action or suit was
brought or other court of competent jurisdiction, determines upon application
that in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.
Any indemnification under the previous paragraphs, unless ordered by a
court or advanced as provided in the succeeding paragraph, must be made by the
Company only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The determination must be made (I) by the stockholders, (ii) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to the act, suit or proceeding, (iii) if a majority vote of
a quorum of directors who were not parties to the act, suit or proceeding so
orders, by independent legal counsel in a written opinion or (iv) if a quorum
consisting of directors who were not parties to the act, suit or proceeding
cannot be obtained, by independent legal counsel in a written opinion. To the
extent that a director, officer, employee or agent of the Company has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in the previous paragraph, or in defense of any claim,
issue or matter therein, he must be indemnified by the Company against expenses,
including attorneys' fees, actually and reasonably incurred by him in connection
with the defense.
Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding must be paid by the Company as they are
incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be indemnified by the Company
as authorized by the By-Laws. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
The indemnification and advancement of expenses authorized in or
ordered by a court as provided in the foregoing paragraphs does not exclude any
other rights to which a person seeking indemnification or advancement of
expenses may be entitled under the Articles of Incorporation or any bylaw,
agreement, vote of shareholders or disinterested directors or otherwise, for
either an action in his official capacity or an action in another capacity while
holding his office, except that indemnification, unless ordered by a court as
described in the third preceding paragraph or for advancement of expenses made
as described in the next preceding paragraph, may not be made to or on behalf of
any director or officer if a final adjudication establishes that his acts or
omissions involved intentional misconduct, fraud or a knowing violation of the
law and was material to the cause of action. If a claim
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for indemnification or payment of expenses under Article III, Section 13 of the
By-Laws is not paid in full within ninety (90) days after a written claim
therefor has been received by the Company, the claimant may file suit to recover
the unpaid amount of such claim, if successful in whole or in part, shall be
entitled to be paid the expense of prosecuting such claim. In any such action,
the Company shall have the burden of proving that the claimant was not entitled
to the requested indemnification or payment of expenses under applicable law.
The Board of Directors may authorize, by a vote of a majority of a
quorum of the Board of Directors, the Company to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Company would have the power to indemnify him against such
liability under the provisions of Article III, Section 13 of the By-Laws. The
Board of Directors may authorize the Company to enter into a contract with any
person who is or was a director, officer, employee or agent of the Company or is
or was serving at the request of the Company as a director, officer, employee or
agent of another partnership, joint venture, trust or other enterprise providing
for indemnification rights equivalent to or, if the Board of Directors so
determines, greater than those provided for in Article III, Section 13 of the
By-Laws.
The Company has also purchased insurance for its directors and officers
for certain losses arising from claims or charges made against them in their
capacities as directors and officers of the Company.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 The Amended and Restated 1994 Stock Option Plan (filed as
Exhibit 10.7 to Current Report on Form 8-K dated October 20,
1997 and incorporated herein by this reference).
4.2 The Non-Executive Employee Equity Participation Plan
5.1 Opinion of Latham & Watkins
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Latham & Watkins (included as part of Exhibit 5.1)
24.1 Power of Attorney (included on page 6)
Item 9. Undertakings
(a) The undersigned Registration hereby undertakes:
(1) To file, during any period in which officers 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 this Registration Statement (or the most
recent post-effective amendment thereof) which, individually
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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 paragraphs (a)(1)(i) and (a)(1)(ii) shall not
apply to information included in a post-effective amendment by those paragraphs
contained in periodic reports filed 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.
(b) The undersigned 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 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 this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets the
requirements for filing on Form S-8 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto authorized,
in the City of Portland, State of Oregon on the 10th day of July 1998.
ASSISTED LIVING CONCEPTS, INC.
By: /s/ Keren B. Wilson
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Keren B. Wilson
President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Keren B. Wilson, William McBride III and Sandra
Campbell, and each of them, with full power to act without the other, such
person's true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement, and any and all amendments
thereto (including post-effective amendments), and to file the same, with
exhibits and schedules thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-in-
fact, and each of them, full power and authority to do and perform each and
every act and thing necessary or desirable 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,
thereby ratifying and confirming all that said attorneys-in-fact, or any of
them, or their or his 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 as of the dates indicated:
SIGNATURES TITLE DATE
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/s/ William McBride III Chairman of the July 10, 1998
- ------------------------------------------ Board of Directors and
William McBride III Chief Executive Officer
(Principal Executive Officer and
Principal Financial Officer)
/s/ Keren B. Wilson Director, President and July 10, 1998
- ------------------------------------------ Chief Operating Officer
Keren B. Wilson
/s/ Rhonda S. Marsh Vice President and July 10, 1998
- ------------------------------------------ Chief Accounting Officer
Rhonda S. Marsh (Principal Accounting Officer)
/s/ Gloria Cavanaugh Director July 10, 1998
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Gloria Cavanaugh
/s/ Richard C. Ladd Director July 10, 1998
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Richard C. Ladd
/s/ Bradley G. Razook Director July 10, 1998
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Bradley G. Razook
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