As filed with the Securities and Exchange Commission on December 3, 1999
Registration No. 333-______
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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CAPITAL SENIOR LIVING CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-2678809
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
14160 DALLAS PARKWAY
SUITE 300
DALLAS, TEXAS 75240
(Address of principal executive offices) (Zip Code)
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1997 OMNIBUS STOCK AND INCENTIVE PLAN FOR CAPITAL SENIOR LIVING CORPORATION
(Full title of the plan)
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DAVID R. BRICKMAN, ESQ. COPY TO:
GENERAL COUNSEL WINSTON W. WALP, II, ESQ.
14160 DALLAS PARKWAY, SUITE 300 JENKENS & GILCHRIST,
DALLAS, TEXAS 75240 A PROFESSIONAL CORPORATION
(Name, address and telephone number 1445 ROSS AVENUE, SUITE 3200
including area code of agent for service) DALLAS, TEXAS 75202
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2)(3) OFFERING PRICE(2)(3) FEE(3)
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Common Stock, $0.01 par value per share 2,000,000 Shares $8.838328 $17,676,656 $4,914.11
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<FN>
(1) The securities to be registered consist of 2,000,000 shares
reserved for issuance under the 1997 Omnibus Stock and Incentive Plan for
Capital Senior Living Corporation (the "Plan"). In addition, pursuant to Rule
416 under the Securities Act of 1933, this Registration Statement covers an
indeterminate number of additional shares of the registrant's Common Stock (the
"Common Stock") issuable pursuant to the exercise of options and/or awards
granted or to be granted under the Plan to prevent dilution which may result
from any future stock splits, stock dividends or similar transactions affecting
the Common Stock. These additional shares are also being registered by this
Registration Statement.
(2) Estimated solely for the purpose of calculating the registration
fee.
(3) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price
per share of the Common Stock offered hereunder pursuant to the Plan is based on
(i) 490,000 shares of Common Stock reserved for issuance under the Plan, but not
subject to outstanding stock options, at a price per share of $4.9375, which is
the average of the high and low prices for the Common Stock quoted on the New
York Stock Exchange, Inc. on November 29, 1999, and (ii) the following shares of
Common Stock reserved for issuance under the Plan and subject to options already
granted thereunder at the following exercise prices:
Number of Shares of Common Stock
Reserved for Issuance Exercise Price Per Share
- -------------------------------- ------------------------
650,500 $13.50
732,500 $ 7.0625
100,000 $10.1875
27,000 $10.50
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</FN>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant hereby incorporates by reference in this registration
statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K for the annual
period ended December 31, 1998, filed with the Commission, as amended
by the registrant's Annual Report on Form 10-K/A for the annual period
ended December 31, 1998, filed with the Commission;
(2) the registrant's Current Reports on Form 8-K, dated
February 7, 1999 and February 7, 1999, filed with the Commission;
(3) the registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999, filed with the Commission, as amended by
the registrant's Quarterly Report on Form 10-Q/A for the quarter ended
March 31, 1999, filed with the Commission;
(4) the registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1999, filed with the Commission, as amended by
the registrant's Quarterly Report on Form 10-Q/A for the quarter ended
June 30, 1999, filed with the Commission;
(5) the Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999, filed with the Commission;
(6) the registrant's Current Reports on Form 8-K, dated
October 19, 1999 and October 19, 1999, filed with the Commission; and
(7) the description of the Common Stock of the registrant set
forth in the Registration Statement on Form 8-A, filed with the
Commission on October 3, 1997, including any amendment or report filed
for the purpose of updating such description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this registration
statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
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*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
II-1
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Amended and Restated Certificate of Incorporation of the registrant
provides for indemnification as follows:
"THIRTEENTH: The Corporation shall indemnify any person who was, is, or
is threatened to be made a party to a proceeding (as hereinafter
defined) by reason of the fact that he or she (i) is or was a director
or officer of the Corporation or (ii) while a director or officer of
the Corporation, is or was serving at the request of the Corporation as
a director, officer, partner, venturer, proprietor, trustee, employee,
agent, or similar functionary of another foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan, or other enterprise, to the fullest extent
permitted under the Delaware General Corporation Law, as the same
exists or may hereafter be amended. Such right shall be a contract
right and as such shall inure to the benefit of any director or officer
who is elected and accepts the position of director or officer of the
Corporation or elects to continue to serve as a director or officer of
the Corporation while this Article Thirteenth is in effect. Any repeal
or amendment of this Article Thirteenth shall be prospective only and
shall not limit the rights of any such director or officer or the
obligations of the Corporation with respect to any claim arising from
or related to the services of such director or officer in any of the
foregoing capacities prior to any such repeal or amendment to this
Article Thirteenth. Such right shall include the right to be paid by
the Corporation expenses (including without limitation attorneys' fees)
actually and reasonably incurred by him in defending any such
proceeding in advance of its final disposition to the maximum extent
permitted under the Delaware General Corporation Law, as the same
exists or may hereafter be amended. If a claim for indemnification or
advancement of expenses hereunder is not paid in full by the
Corporation within sixty (60) days after a written claim has been
received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the
claim, and if successful in whole or in part, the claimant shall also
be entitled to be paid the expenses of prosecuting such claim. It shall
be a defense to any such action that such indemnification or
advancement of costs of defense is not permitted under the Delaware
General Corporation Law, but the burden of proving such defense shall
be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors or any committee thereof, independent
legal counsel, or stockholders) to have made its determination prior to
the commencement of such action that indemnification of, or advancement
of costs of defense to, the claimant is permissible in the
circumstances nor any actual determination by the Corporation
(including its Board of Directors or any committee thereof, independent
legal counsel, or stockholders) that such indemnification or
advancement is not permissible shall be a defense to the action or
create a presumption that such indemnification or advance is not
permissible. In the event of the death of any person having a right of
indemnification under the foregoing provisions, such right shall inure
to the benefit of his or her heirs, executors, administrators, and
personal representatives. The rights conferred above shall not be
exclusive of any other right which any person may have or hereafter
acquire under any statute, bylaw, resolution of stockholders or
directors, agreement, or otherwise.
The Corporation may also indemnify any employee or agent of
the Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened,
pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, arbitrative, or investigative, any appeal in
such an action, suit, or proceeding, or any inquiry or investigation
that could lead to such an action, suit, or proceeding."
II-2
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
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4.1* 1997 Omnibus Stock and Incentive Plan for Capital Senior Living
Corporation, as amended
4.2* Form of Stock Option Agreement
5.1* Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1* Consent of Jenkens & Gilchrist, a Professional Corporation
(included in their opinion filed as Exhibit 5.1)
23.2* Consent of Ernst & Young LLP
23.3* Consent of KPMG LLP
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
A. The undersigned 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 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; and
(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 the 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
II-3
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 of 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-4
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
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 Dallas, Texas, on November 30, 1999.
CAPITAL SENIOR LIVING CORPORATION
By: /s/ Lawrence A. Cohen
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Lawrence A. Cohen,
Chief Executive Officer and Vice Chairman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Lawrence A. Cohen and James A. Stroud and
each of them, each with full power to act without the other, his true and lawful
attorneys-in-fact and agents, each 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 all exhibits, thereto, and all documents in connection
therewith, with the Commission, granting unto each of 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 connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents or his
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.
SIGNATURE CAPACITY DATE
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/s/ James A. Stroud Chairman of the Board of Directors and Chairman November 19, 1999
- -------------------------------- and Secretary
James A. Stroud
/s/ Lawrence A. Cohen Vice Chairman of the Board of Directors and Chief November 30, 1999
- -------------------------------- Executive Officer (Principal Executive Officer)
Lawrence A. Cohen
/s/ Keith N. Johannessen President and Chief Operating Officer and Director November 30, 1999
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Keith N. Johannessen
/s/ Ralph A. Beattie Executive Vice President and Chief Financial Officer November 30, 1999
- -------------------------------- (Principal Financial Officer)
Ralph A. Beattie
/s/ Dr. Gordon I. Goldstein Director November 30, 1999
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Dr. Gordon I. Goldstein
/s/ James A. Moore Director November 18, 1999
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James A. Moore
/s/ Dr. Victor W. Nee Director November 30, 1999
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Dr. Victor W. Nee
EXHIBIT INDEX
Sequential
Exhibit Page
Number Document Description Number
------- -------------------- ----------
4.1 1997 Omnibus Stock and Incentive Plan for Capital Senior Living Corporation, as
amended
4.2 Form of Stock Option Agreement
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation (included in their
opinion filed as Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
23.3 Consent of KPMG LLP