As filed with the Securities and Exchange Commission on June 10, 2004Registration No. 333- SECURITIES AND
EXCHANGE COMMISSION
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| Tennessee
(State or Other Jurisdiction of Incorporation or Organization) |
62-1674303
(I.R.S. Employer Identification Number) |
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111 Westwood
Place, Suite 200 W.E. Sheriff Copies Of Communications To:T. Andrew Smith
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CALCULATION OF REGISTRATION FEE |
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| Title of Each Class of Securities to be Registered (1) |
Proposed Maximum Aggregate Offering Price (1)(2)(3)(4) |
Amount of Registration Fee |
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| Debt Securities (5) | — | ||||||
| Preferred Stock, no par value (6) | — | ||||||
| Common Stock, $0.01 par value, and associated rights | |||||||
| to purchase Series A Junior Preferred Stock (7) | — | ||||||
| Warrants (8) | — | ||||||
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| Total | $ | 250,000,000 | (1) | $ | 31,675.00 | (9) | |
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(1) In no event will the aggregate initial offering price of the securities issued from time to time under this Registration Statement exceed $250,000,000 or, if any debt securities are issued with original issue discount, such greater amount as shall result in an aggregate offering price of $250,000,000. The aggregate amount of common stock registered hereunder is limited to that which is permissible under Rule 415(a)(4) under the Securities Act of 1933, as amended. The securities registered hereunder may be sold separately, together or as units with other securities registered hereunder. There are also being registered hereunder an indeterminate principal amount of each class of securities registered hereunder (the “underlying securities”) as may be issuable, without separate consideration, (i) upon conversion, exercise or exchange of any other class of securities registered hereunder, to the extent such securities are by their terms convertible into or exercisable or exchangeable for the underlying securities, or (ii) pursuant to antidilution provisions of any other class of securities registered hereunder. (2) Not specified as to each class of securities to be registered hereunder pursuant to General Instruction II.D. to Form S-3. (3) The proposed maximum offering price per unit for each class of securities to be registered hereunder shall be determined from time to time by the registrant in connection with the issuance by the registrant of the securities registered hereunder. (4) Estimated solely for the purposes of calculating the registration fee pursuant to Rule 457 of the Securities Act of 1933, as amended. (5) Subject to note (1) above, there is being registered hereunder an indeterminate amount of debt securities of the registrant as may be sold from time to time. (6) Subject to note (1) above, there is being registered hereunder an indeterminate amount of preferred stock of the registrant as may be sold from time to time. (7) Subject to note (1) above, there is being registered hereunder an indeterminate amount of common stock of the registrant, together with associated rights to purchase Series A Junior Preferred Stock, as may be sold from time to time. (8) Subject to note (1) above, there is being registered hereunder an indeterminate amount of warrants to purchase shares of common stock of the registrant as may be sold from time to time. (9) The registration fee has been calculated pursuant to Rule 457(o) of the Securities Act of 1933, as amended. The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. SUBJECT TO COMPLETION, DATED JUNE 10, 2004PROSPECTUS |
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111 Westwood Place,
Suite 200
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| • | shares of our common stock, par value $0.01 per share, and associated rights to purchase Series A junior preferred stock; |
| • | shares of our preferred stock, no par value per share, in one or more series; |
| • | our debt securities in one or more series, which may be either senior debt securities, senior subordinated debt securities, subordinated debt securities or debt securities with any other ranking; |
| • | warrants to purchase shares of our common stock; or |
| • | any combination of the foregoing. |
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We will provide the specific terms of these securities in supplements to this prospectus. You should read this prospectus and any prospectus supplement, as well as the documents incorporated or deemed to be incorporated by reference in the prospectus, carefully before you invest. See “Risk Factors” beginning on page 1 for a discussion of material risks that you should consider before you invest in our securities being sold with this prospectus. Our common stock is traded on the New York Stock Exchange under the symbol “ACR”. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. We will sell these securities directly, through agents, dealers or underwriters as designated from time to time, or through a combination of these methods. We reserve the sole right to accept, and together with our agents, from time to time, to reject in whole or in part any proposed purchase of securities to be made directly or through agents. If our agents or any dealers or underwriters are involved in the sale of the securities, the applicable prospectus supplement will set forth the names of the agents, dealers or underwriters and any applicable commissions or discounts. This prospectus may not be used to consummate sales of securities unless accompanied by the applicable prospectus supplement. The date of this prospectus is , 2004.
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Our liability insurance may not be adequate to cover claims which may arise against us.The delivery of personal and health care services entails an inherent risk of liability. In recent years, participants in the senior living and health care services industry have become subject to an increasing number of lawsuits alleging negligence or related legal theories, many of which involve large claims and result in the incurrence of significant defense costs and significant exposure. We currently maintain property, liability and professional medical malpractice insurance policies for our owned, leased and certain of our managed communities under a master insurance program. The number of insurance companies willing to provide general liability and professional liability insurance for the nursing and assisted living industry has declined dramatically and the premiums and deductibles associated with such insurance has risen substantially in recent years. We maintain programs under which we are partially self-insured for our workers’ compensation and employee medical coverage. We cannot assure you that our current level of accruals will be adequate to cover the actual liabilities that we ultimately incur. We cannot assure you that a claim in excess of our insurance coverage limits will not arise. A claim against us that is not covered by, or is in excess of, our coverage limits could have a material adverse effect upon us. Furthermore, we cannot assure you that we will be able to obtain adequate liability insurance in the future or that, if such insurance is available, it will be available on acceptable terms. We may be adversely affected by the limited availability of management, nursing and other personnel and by increased labor costs. We compete with other providers of senior living and health care services with respect to attracting and retaining qualified management personnel responsible for the day-to-day operations of each of our communities and skilled technical personnel responsible for providing resident care. In certain markets, a shortage of nurses or trained personnel has required us to enhance our wage and benefits package in order to compete in the hiring and retention of such personnel or to hire more expensive temporary personnel. We are also heavily dependent on the available labor pool of semi-skilled and unskilled employees in each of the markets in which we operate. We have experienced a competitive labor market, periodic shortages of qualified workers in certain markets, and increasing wage rates for many of our employees. We cannot be sure that our labor costs will not increase, or that, if they do increase, they can be matched by corresponding increases in rates charged to residents. If we are unable to attract and retain qualified management and staff personnel, control our labor costs, or pass on increased labor costs to residents through rate increases, our business, financial condition, and results of operations would be adversely affected. We may be adversely affected by rising interest rates.Future indebtedness, from commercial banks or otherwise, and lease obligations, including those related to communities leased from REITs (real estate investment trusts), are expected to be based on interest rates prevailing at the time such debt and lease arrangements are obtained. As of March 31, 2004, we had $271.0 million of fixed rate date and $91.0 million of variable rate debt outstanding. Increases in prevailing interest rates would increase our interest or lease payment obligations with respect to a substantial portion of our variable rate debt and could have a material adverse effect on our business, financial condition, and results of operations. 2 |
We may be adversely affected by the loss of our key officers or employees.We rely upon the services of our executive officers. The loss of some of our executive officers and the inability to attract and retain qualified management personnel could affect our ability to manage our business and could adversely affect our business, financial condition and results of operations. We may be adversely affected by the termination of residency agreements with our independent living residents.Our residency agreements with our independent living residents (other than entrance fee contracts) are generally for a term of one year (terminable by the resident upon 30 to 60 days written notice). Although most residents remain for many years, we do not contract with residents for longer periods of time. If a large number of residents elected to terminate their resident agreements at or around the same time, our revenues and earnings could be adversely affected. We are dependent upon attracting residents who have sufficient resources to pay for our services.Approximately 86.7% and 85.4% of our total revenues for the year ended December 31, 2003 and the quarter ended March 31, 2004, respectively, were attributable to private pay sources. We expect to continue to rely primarily on the ability of residents to pay for our services from their personal or family financial resources and long-term care insurance. Future economic or investment market conditions or other circumstances that adversely affect the ability of seniors to pay for our services could have a material adverse effect on our business, financial condition, and results of operations. We are susceptible to certain risks associated with the lifecare benefits that we offer the residents of our lifecare entrance fee communities.Six of the communities operated by us are lifecare entrance fee communities that offer residents a limited lifecare benefit. Residents of these communities pay an upfront entrance fee upon occupancy, of which a portion is generally refundable, with an additional monthly service fee while living in the community. This limited lifecare benefit is typically (a) a certain number of free days in the community’s health center during the resident’s lifetime, (b) a discounted rate for such services, or (c) a combination of the two. The lifecare benefit varies based upon the extent to which the resident’s entrance fee is refundable. The pricing of entrance fees, refundability provisions, monthly service fees, and lifecare benefits are determined utilizing actuarial projections of the expected morbidity and mortality of the resident population. In the event the entrance fees and monthly service payments established for our communities are not sufficient to cover the cost of lifecare benefits granted to residents, the results of operations and financial condition of these communities could be adversely affected. Residents of these entrance fee communities are guaranteed a living unit and nursing care at the community during their lifetime, even if the resident exhausts his or her financial resources and becomes unable to satisfy his or her obligations to the community. In addition, in the event a resident requires nursing care and there is insufficient capacity for the resident in the nursing facility at the community where the resident lives, the community must contract with a third party to provide such care. Although we screen potential residents to ensure that they have adequate assets, income, and reimbursements from government programs and third parties to pay their obligations to our communities during their lifetime, we cannot assure you that such assets, income, and reimbursements will be sufficient in all cases. If insufficient, we have rights of set-off against the refundable portions of the residents’ deposits, and would also seek available reimbursement under Medicaid or other available programs. To the extent that the financial resources of some of the residents are not sufficient to pay for the cost of facilities and services provided to them, or in the event that our communities must pay third parties to provide nursing care to residents of our communities, our results of operations and financial condition would be adversely affected. 3 |
We are susceptible to certain risks associated with the concentration of our facilities in certain geographic areas.Part of our business strategy is to own, lease or manage senior living communities in concentrated geographic service areas. We have a large concentration of communities in Florida, Texas, Arizona and Colorado, among other areas. Accordingly, our operating results may be adversely affected by various regional and local factors, including economic conditions, real estate market conditions, competitive conditions, and applicable laws and regulations. We are susceptible to certain risks associated with government regulation of the healthcare industry and the burdens of compliance with such regulations.Federal and state governments regulate various aspects of our business. The development and operation of senior living communities and the provision of health care services are subject to federal, state, and local licensure, certification, and inspection laws. Failure to comply with these laws and regulations could result in the denial of reimbursement, the imposition of fines, temporary suspension of admission of new patients, restrictions on operating or marketing entrance fee communities, suspension or decertification from Medicare, Medicaid, or other state or Federal reimbursement programs, restrictions on our ability to acquire new communities or expand existing communities, or revocation of a community’s license. We cannot assure you that we will not be subject to penalties in the future, or that federal, state, or local governments will not impose restrictions on our activities that could materially adversely affect our business, financial condition, or results of operations. The value of the securities offered in this prospectus may be adversely affected by our shareholder rights plan, certain provisions of our charter and bylaws and certain anti-takeover provisions of Tennessee law. We have a shareholder rights plan that may have the effect of discouraging unsolicited takeover proposals. The rights issued under the shareholder rights plan would cause substantial dilution to a person or group that attempts to acquire us on terms not approved in advance by our board of directors. Our board of directors also has the authority, without action by our shareholders, to issue up to 5,000,000 shares of preferred stock and to fix the rights and preferences of such shares. This authority, together with certain other provisions of our charter (including provisions that implement staggered terms for directors, limit shareholder ability to call a shareholders’ meeting or to remove directors, and require a supermajority vote to amend certain provisions of the charter), may delay, deter, or prevent a change in control of the company. In addition, as a Tennessee corporation, we are subject to the provisions of the Tennessee Business Combination Act and the Tennessee Greenmail Act, each of which may be deemed to have anti-takeover effects and may delay, deter, or prevent a takeover attempt that might be considered by the shareholders to be in their best interests. The price of the securities offered in this prospectus could be subject to significant fluctuations. The market price of the securities offered from time to time pursuant to the registration statement of which this prospectus is a part could be subject to significant fluctuations in response to various factors and events, including the liquidity of the market for our securities, variations in our operating results, and new statutes or regulations or changes in the interpretation of existing statutes or regulations affecting the health care industry in general or the senior living industry in particular. In addition, the stock market in recent years has experienced broad price and volume fluctuations that often have been unrelated to the operating performance of particular companies. These market fluctuations also may adversely affect the market price of the securities offered pursuant to the registration statement of which this prospectus is a part. 4 |
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Management Services – We also operate five large retirement centers owned by others under multi-year management agreements. Under our management agreements, we receive management fees as well as reimbursed expense revenues, which reimburse associated expenses we incur on behalf of the owners. Two of these communities are retirement center cooperatives that are owned by their residents, and two others are owned by not-for-profit sponsors. The remaining retirement center is owned by an unaffiliated third party. These five communities have approximately 1,200 units, representing approximately 9% of the total unit capacity of our communities as of March 31, 2004. The results of a sixth retirement center that we operate under a long term management agreement, Freedom Square, are included in the consolidated results of our retirement center segment. Care and Services ProgramsWe provide a wide array of senior living and health care services at our communities, including independent living, assisted living and memory enhanced services (with special programs and living units for residents with Alzheimer’s and other forms of dementia), skilled nursing services, and therapy services. By offering a variety of services and involving the active participation of the resident, resident’s family and medical consultants, we are able to customize our service plans to meet the specific needs and desires of each resident. As a result, we believe that we are able to maximize resident satisfaction and avoid the high cost of delivering all services to every resident without regard to need, preference, or choice. Independent Living Services We provide independent living services to seniors who do not yet need assistance or support with the activities of daily life, or ADLs, but who prefer the physical and psychological comfort of a residential community for seniors that offers health care and other services. Independent living services provided by the company include daily meals and dining programs, transportation, social and recreational activities, laundry, housekeeping, security, and health care monitoring. We employ health care professionals to foster the wellness of our residents by offering health screenings, ongoing dietary, exercise and fitness classes, and chronic disease management (such as diabetes with blood glucose monitoring). Subject to applicable government regulation, personal care and medical services are available to our independent living residents. Our residency agreements with our independent living residents (other than entrance fee contracts) are generally for a term of one year (terminable by the resident upon 30 to 60 days written notice), although most residents remain for many years. The agreements generally provide for increases in billing rates each year (subject to specified ceilings at certain communities). Residents are also billed monthly for ancillary services utilized over and above those included in their recurring monthly service fees. These revenues are generally paid from private pay sources and are recognized monthly when the services are provided. Assisted Living and Memory Enhanced Services Residents who receive our assisted living services generally need assistance with some or all ADLs, but do not require the more acute medical care provided in a typical nursing home environment. Upon admission, each assisted living resident is assessed, in consultation with the resident, the resident’s family and medical consultants, to determine his or her health status, including functional abilities and need for personal care services. Each resident also completes a lifestyles assessment to determine the resident’s preferences. From these assessments, a care plan is developed in an effort to ensure that the specific needs and preferences of each resident are satisfied to the extent possible. Each resident’s care plan is reviewed periodically to determine when a change in care is needed. We have adopted a philosophy of assisted living care with the goal of allowing a resident to maintain a dignified, independent lifestyle. Residents and their families are encouraged to be partners in their care and to take as much responsibility for the resident’s well being as possible. The basic types of assisted living services offered by the company include: |
| • | personal care services - which include assistance with ADLs such as ambulation, bathing, dressing, eating, grooming, personal hygiene, monitoring or assistance with medications, and confusion management; |
| • | support services - such as meals, assistance with social and recreational activities, laundry services, general housekeeping, maintenance services and transportation services; and |
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| • | special care services - such as our “Arbors” memory enhancement programs and other specialized services to care for residents with Alzheimer’s and other forms of dementia in a comfortable, homelike setting. |
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We maintain programs and special “Arbors” units at most of our assisted living communities for residents with Alzheimer’s and other forms of dementia. These programs provide the attention, care, and services to help those residents maintain a higher quality of life. Specialized services include assistance with activities of daily living, behavior management, and a lifeskills-based activity program, the goal being to provide a normalized environment that supports residents’ remaining functional abilities. These special units are located in a separate area of the communities and have their own dining and lounge facilities, and specially trained staff. Our agreements for assisted living services are month to month and provide for annual or other periodic increases to the monthly service fees. Monthly service fees are based on size of unit selected, additional services provided, and level of care required. Specialized units for those with Alzheimer’s or other forms of dementia have higher billing rates to cover the increased staffing and program costs associated with these services. These revenues, generally from private pay sources, are recognized as revenue on a monthly basis when the services are provided. Skilled Nursing Within our retirement center campuses, we operate 17 skilled nursing centers providing traditional skilled nursing care by registered nurses, licensed practical nurses, and certified nursing aides. We also offer a range of therapy rehabilitation services in these communities. Therapy services are typically rendered immediately after, or in lieu of, acute hospitalization in order to treat specific medical conditions. Our skilled nursing services are primarily utilized by our independent and assisted living residents who occupy the skilled nursing centers at our retirement centers on a temporary or long-term basis. However, we also provide skilled nursing services to those admitted from outside the retirement center for temporary stays following hospitalization or other health issues, some of which also become long-term residents of the retirement center. These skilled nursing services are provided to the individuals on a daily fee basis, with additional charges for specialized equipment, therapy, medications or medical supplies in many cases. These services are paid for primarily by private pay sources, long-term care insurance, and under the Medicare, and in some cases Medicaid, programs. Daily rates are revised periodically in response to cost changes and market conditions. These daily revenues are recognized when the services are provided. Therapy Services We historically contracted with independent third parties to provide therapy services to our residents. Beginning in 2000, we began administering therapy services on our own and greatly expanded our in-house therapy programs. We currently provide a range of therapy services to our independent living, assisted living, and skilled nursing residents. The therapy services provided by us include physical, occupational, and speech therapy services. We believe that by providing these in-house therapy services, we are able to maintain a consistent, high level of care to our residents, provide a closer relationship between the therapist and the resident, and provide many continuing education opportunities for residents and their families through health fairs, seminars, and other consultative interactions. In addition, programs focused on wellness and physical fitness allow residents to maintain maximum independence. These services may be reimbursed under Medicare or paid directly by residents from private pay sources and revenues are recognized as services are provided. Managed CommunitiesOur management agreements with third-parties have terms of three to 20 years and require us to provide a wide range of services. We may be responsible for providing all employees and all marketing and operations services at the community. In other agreements, we may provide management personnel only, and more limited services including assistance with marketing, finance and other operations. In each case, the costs of owning and operating the community are the responsibility of the owner. In most cases, we receive a monthly fee for our services based either on a contractually fixed amount or a percentage of revenues or income. Our existing management agreements expire at various times through June 2018, but certain agreements may be canceled by the owner of the community, without cause, on three to six months’ written notice. 9 |
Entrance Fee AgreementsSix of our retirement centers (four owned, one leased and one managed community that we consolidate) are continuing care retirement communities that provide housing and health care services through entrance fee agreements with residents, which we refer to as the entrance fee communities. In addition, we manage two other retirement centers utilizing entrance fees, but do not receive the economics of the entrance fee sales for these communities. Under these agreements, residents pay an entrance fee, typically $100,000 to $400,000 or more, upon initial occupancy of a unit. The amount of the entrance fee varies depending upon the type and size of the dwelling unit selected, the resident’s lifecare benefit election and other variables. Under the entrance fee agreements, generally a portion of the entrance fee is refundable to the resident or the resident’s estate upon termination of the entrance fee contract. The entrance fee agreements typically contain contractual provisions reducing the percentage of the original entrance fee that is refundable to the resident over time. In a relatively short period of time (generally two to four years), the refundable portion of the entrance fee is reduced to a fixed minimum percentage. However, for accounting purposes, entrance fee revenues are recognized over a longer period based on actuarial projections. The non-refundable portion of the fee is recorded as deferred entrance fee income and is amortized into revenue using the straight-line method over the estimated remaining life expectancy of the resident, based upon actuarial projections. The refundable amount of the entrance fee is a long-term liability and is recorded by us as refundable portion of entrance fees, until termination of the agreement. These entrance fee agreements include limited lifecare benefits which are typically: (a) a certain number of free days in the community’s skilled nursing center during the resident’s lifetime; (b) a discounted rate for such services; or (c) a combination of the two. The limited lifecare benefit also varies based upon the extent to which the resident’s entrance fee is refundable. At certain of our entrance fee communities, we offer an entrance fee program that allows the resident to participate in the appreciation in the value of the resident’s unit, which we refer to as the Partner Plan. Under the Partner Plan, the entrance fee is refundable to the resident or the resident’s estate only upon the sale of the unit to a succeeding resident unless otherwise required by applicable state law. Typically, Partner Plan residents receive priority access to assisted living and skilled nursing services, but no discounted or other lifecare benefits. The resident shares in a specified percentage, typically 50%, of any appreciation in the entrance fee paid by the succeeding resident. The entrance fees payable under the Partner Plan are recorded by us as refundable entrance fees and are amortized into revenue using the straight-line method over the remaining life of the building. The residents under all of our entrance fee agreements also pay a monthly service fee, which entitles them to the use of certain amenities and certain services. As a result of paying an entrance fee upfront, the monthly fee will be less than fees at a comparable rental community. Residents may also elect to obtain additional services, which are billed on a monthly basis or as the services are provided. We recognize these additional fees as revenue on a monthly basis when these services are provided. Business OperationsManagement Structure Each of our retirement centers is managed by an executive director, with various department heads responsible for functional areas such as assisted living, activities, dining services, maintenance, human resources and finance. Within the retirement centers, healthcare professionals manage the assisted living and memory enhanced programs, as well as wellness and other programs. For those communities with health centers providing skilled nursing services, licensed professionals also manage those services and direct the nursing staff. Each of our free-standing assisted living communities is managed by a residence manager whose primary focus is resident care. These communities receive daily administrative central support for operations, care planning, clinical assessments, quality assurance, accounting and finance, human resources, dining and maintenance. By providing strong program management and administrative support from the home office and at the regional level, the staff at the free-standing assisted living communities can focus on the care of the residents and interaction with their families or other caregivers. 10 |
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Our retirement centers and free-standing assisted living communities report to regional operation vice presidents. These regional vice presidents and their staff regularly visit the communities, providing inspection of the communities, staff development and training, financial and program reviews, regulatory and compliance support, and quality assurance reviews. Our home office provides central support to the communities in various areas, including information technology, human resources, training, accounting, finance, internal audit, insurance and risk management, legal, development, sales and marketing, dining services, therapy services, operations and program support, and national purchasing programs. Home office staff also provide support for budgeting, financial analysis and strategic planning. In addition, quality assurance and risk management staff review and monitor key safety and quality measurements, train community staff, and visit communities regularly for regulatory and other compliance programs. Human resource programs are developed for staff training and retention in the communities, and are implemented by the home office and regional staff. We believe that, through our regional and home office staff, we are able to provide strong support in each functional area on a cost effective basis, which provides an advantage over many other smaller or local competitors. In addition, by providing daily administrative support to our free-standing assisted living communities, we believe that our community staff are able to stay focused on resident care and provide a higher level of service to the residents and their families. Marketing Each community has an on-site marketing director and additional marketing staff based on its size. These community based marketing personnel are involved in daily activities with prospective residents and key referral sources including current residents and their families. Home office and regional marketing directors assist each community in developing, implementing and monitoring their detailed marketing plan. The marketing plans include goals for lead generation, wait lists, referrals, community outreach, awareness events, prospect follow-up, and monthly move-ins. Competitive analyses are also updated regularly. Home office marketing staff provide coordination and monitoring of these marketing plans, development of pricing strategies and overall marketing plans, assistance with creative media, collection and analysis of data measuring effectiveness of promotions, advertising, and lead sources, and selection and training of regional and community staff. We believe that this locally based marketing approach, coupled with strong regional and central monitoring and support, provides an advantage over many smaller or regional competitors. Feedback and Quality Assurance We solicit regular feedback from our residents, their families, and our employees through various satisfaction surveys. We also regularly perform quality assurance reviews by community, regional and home office staff, in addition to being subject to surveys and reviews by various local, state and federal regulatory agencies. We believe that each of these activities provides important feedback, which can be used by management to maintain high levels of safety and quality, and to continue to look for opportunities to improve our procedures and programs. Senior Living IndustryThe senior living industry is highly fragmented and characterized by numerous local and regional operators. We are one of a limited number of national competitors that provide a broad range of community locations and service level offerings at varying price levels. The industry has seen significant growth in recent years and has been marked by the emergence of the assisted living segment in the mid-1990s. We believe that a number of trends will contribute to the growth in the senior living industry. The primary market for senior living services is individuals age 75 and older. According to U.S. Census data, this group is one of the fastest growing segments of the United States population and is expected to more than double between the years 2000 and 2030. The population of seniors age 85 and over has also increased in recent years, and is expected to continue to grow. As a result of these expected demographic trends, we expect an increase in the demand for senior living services in future years. 11 |
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We believe the senior living industry has been and will continue to be impacted by several other trends. The use of long-term care insurance is increasing among current and future seniors as a means of planning for the costs of senior living services. In addition, as a result of increased mobility in society, reduction of average family size, and increased number of two-wage earner couples, more seniors are looking for alternatives outside the family for their care. Many seniors have shown an increasing preference for communities that allow them to “age in place” in a residential setting, which provides them maximum independence and quality of life in contrast to more institutional or clinical settings. The emergence of the assisted living segment of the industry in the mid-1990s is a prime example of this trend. CompetitionThe senior living and health care services industry is highly competitive and we expect that providers within the industry will continue to be competitive in the future. During the second half of the 1990s, a large number of assisted living units were developed across the country, including in many of our markets. This additional capacity increased the time required to fill assisted living units in most markets and resulted in significant pricing pressures in those markets. We believe that the primary competitive factors in the senior living and health care services industry are: (i) reputation for and commitment to a high quality of care; (ii) quality of support services offered; (iii) price of services; (iv) physical appearance and amenities associated with the communities; and (v) location. We compete with other companies providing independent living, assisted living, skilled nursing, and other similar service and care alternatives, many of whom may have greater financial resources than the company. The senior living industry is highly fragmented and characterized by many local or regional operators. We are one of a limited number of national competitors that operate a large number of communities in multiple locations, and that provide a broad range of senior living services at varying price levels. Our size allows us to centralize administrative functions that give the decentralized managerial operations cost-efficient support. We believe we have a reputation as a leader in the industry and as a provider of high quality services. We also compete with other health care businesses with respect to attracting and retaining nurses, technicians, aides, and other high quality professional and non-professional employees and managers. The market for these professionals has become very competitive, with resulting pressure on salaries and compensation levels. However, we believe that we are able to attract and retain quality managers through our reputation, culture, organizational stability, and competitive compensation. Address and Telephone NumberOur principal executive offices are located at 111 Westwood Place, Suite 200, Brentwood, Tennessee 37027 and our telephone number is (615) 221-2250. Our website address is http://www.arclp.com. Information on our website is not a part of this prospectus. 12 |
| Fiscal Years |
Three Months Ended March 31, 2004 |
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| Ratio of earnings to fixed charges (1)(2) | 1.11x | 0.85x | 0.37x | 0.22x | 0.88x | 0.86x | |||||
| (1) | The ratios of fixed earnings to combined fixed charges and preferred stock dividends is identical to the ratios of earnings to fixed charges for each period listed because we have not yet issued any shares of preferred stock. |
| (2) | For purposes of this computation, earnings are defined as income (loss) before income taxes and adjustment for minority interests in consolidated subsidiaries or income or loss from equity investees, plus fixed charges, amortization of capitalized interest and distributed income of equity investees, less capitalized interest. Fixed charges are defined as the sum of interest expensed and capitalized, amortized premiums, discounts and capitalized expenses related to indebtedness and an estimate of the interest within rent expense. |
Preferred StockGeneral The following description of our preferred stock sets forth certain anticipated general terms and provisions of our preferred stock to which any prospectus supplement may relate. Certain other terms of any series of our preferred stock offered by any prospectus supplement (which terms may be different than those stated below) will be described in such prospectus supplement. The description of certain provisions of the preferred stock set forth below and in any prospectus supplement does not purport to be complete and is subject to and qualified in its entirety by reference to our charter and the board of directors’ resolution relating to each series of preferred stock that will be filed with the Securities and Exchange Commission and incorporated by reference to the registration statement of which this prospectus is a part at or prior to the time of the issuance of such series of preferred stock. Under our charter, our board of directors is authorized to establish and issue, from time to time, up to 5,000,000 shares of preferred stock, in one or more series, with such dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), redemption price or prices, and liquidation preferences as shall be stated in the resolution providing for the issue of a series of such stock, adopted, at any time or from time to time, by our board of directors. The preferred stock shall have the dividend, liquidation, redemption, and voting rights set forth below unless otherwise provided in a prospectus supplement relating to a particular series of preferred stock. Reference is made to the prospectus supplement relating to the particular series of preferred stock offered thereby for specific terms, including: (i) the designation and stated value per share of such preferred stock and the number of shares offered; (ii) the amount of liquidation preference per share; (iii) the initial public offering price at which such preferred stock will be issued; (iv) the dividend rate (or method of calculation), the dates on which dividends shall be payable, and the dates from which dividends shall commence to cumulate, if any; (v) any redemption or sinking fund provisions; (vi) any conversion rights; and (vii) any additional voting, dividend, liquidation, redemption, sinking fund, and other rights, preferences, privileges, limitations, and restrictions. The preferred stock will, when issued, be fully paid and nonassessable and will have no preemptive rights. Unless otherwise stated in a prospectus supplement relating to a particular series of preferred stock, each series of preferred stock will rank on a parity as to dividends and distributions of assets with each other series of preferred stock. The rights of the holders of each series of preferred stock will be subordinate to those of our general creditors. Our common stock is listed on the New York Stock Exchange. The current rules of the New York Stock Exchange effectively preclude the listing on the New York Stock Exchange of any securities of an issuer that has issued securities or taken other corporate action that would have the effect of nullifying, restricting, or disparately reducing the per share voting rights of holders of an outstanding class or classes of securities registered under Section 12 of the Exchange Act. We do not intend to issue any additional shares of stock that would make the common stock ineligible for continued listing or cause the common stock to be delisted from the New York Stock Exchange. Dividend Rights Unless otherwise stated in a prospectus supplement relating to a particular series of the preferred stock, holders of shares of our preferred stock of each series will be entitled to receive, when, as, and if declared by our board of directors, out of funds legally available therefor, cash dividends on such dates and at such rates as will be set forth in, or as are determined by the method described in, the prospectus supplement relating to such series of preferred stock. Such rate may be fixed or variable or both. Each such dividend will be payable to the holders of record as they appear on our stock books on such record dates as may be fixed by our board of directors and specified in the prospectus supplement relating to such series of preferred stock. Such dividends may be cumulative or noncumulative, as provided in the prospectus supplement relating to such series of preferred stock. If our board of directors fails to declare a dividend payable on a dividend payment date on any series of preferred stock for which dividends are noncumulative, then the holders of such series of preferred stock will have no right to receive a dividend in respect of the dividend period ending on such dividend payment date, and we shall have no obligation to pay the dividend accrued for such period, whether or not dividends on such series are declared payable on any future dividend payment dates. Dividends on the shares of each series of preferred stock for which dividends are cumulative will accrue from the date on which we initially issue shares of such series. 15 |
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Unless otherwise stated in a prospectus supplement relating to a particular series of preferred stock, so long as the shares of any series of preferred stock shall be outstanding, unless (i) full dividends (including if such preferred stock is cumulative, dividends for prior dividend periods) shall have been paid or declared and set apart for payment on all outstanding shares of preferred stock of such series and all other classes and series of preferred stock (other than junior stock, as described below) and (ii) we are not in default or in arrears with respect to the mandatory or optional redemption or mandatory repurchase or other mandatory retirement of, or with respect to any sinking or other analogous fund for, any shares of preferred stock of such series or any shares of any other preferred stock of any class or series (other than junior stock), we may not declare any dividends on any shares of common stock or any other stock ranking as to dividends or distributions of assets junior to such series of preferred stock (the common stock and any such other stock being herein referred to as “junior stock”), or make any payment on account of, or set apart money for, the purchase, redemption, or other retirement of, or for a sinking or other analogous fund for, any shares of junior stock or make any distribution in respect thereof, whether in cash or property or in our obligations or stock, other than junior stock that is neither convertible into, nor exchangeable or exercisable for, any of our securities other than junior stock. Liquidation Preference In the event of any liquidation, dissolution, or winding up of the company, voluntary or involuntary, the holders of each series of our preferred stock will be entitled to receive out of our assets available for distribution to shareholders, before any distribution of assets or payment is made to holders of our common stock or any other shares of our stock ranking junior as to such distribution or payment to such series of preferred stock, the amount set forth in the prospectus supplement relating to such series of our preferred stock. Upon any voluntary or involuntary liquidation, dissolution, or winding up of the company, shares of any series of our preferred stock will share ratably in any such distribution of our assets in proportion to the full respective preferential amounts to which they are entitled. After payment to holders of our preferred stock of the full preferential amounts of the liquidating distribution to which they are entitled, the holders of each such series of preferred stock will be entitled to no further participation in any distribution of our assets. If such payment shall have been made in full to all holders of shares of preferred stock, the remaining assets shall be distributed among the holders of any other classes of stock ranking junior to the preferred stock upon liquidation, dissolution, or winding up, according to their respective rights and preferences and in each case according to their respective number of shares. For such purposes, the consolidation or merger of the company with or into any other corporation, or the sale, lease, or conveyance of all or substantially all of our property or business, shall not be deemed to constitute a liquidation, dissolution, or winding up of the company. Redemption A series of preferred stock may be redeemable, in whole or from time to time in part, at our option, and may be subject to mandatory redemption pursuant to a sinking fund or otherwise, in each case upon terms, at the times and at the redemption prices set forth in the prospectus supplement relating to such series. Shares of our preferred stock redeemed by us will be restored to the status of authorized but unissued shares of preferred stock. In the event that fewer than all of the outstanding shares of a series of our preferred stock are to be redeemed, whether by mandatory or optional redemption, the number of shares to be redeemed will be determined by lot or pro rata (subject to rounding to avoid fractional shares) as may be determined by us or by any other method as we, in our sole discretion, may determine to be equitable. From and after the redemption date (unless we default in the payment of the redemption price plus accumulated and unpaid dividends, if any), dividends shall cease to accumulate on the shares of our preferred stock called for redemption and all rights of the holders thereof (except the right to receive the redemption price plus accumulated and unpaid dividends, if any) shall cease. 16 |
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So long as any dividends on shares of any series of our preferred stock or any other series of our preferred stock ranking on a parity as to dividends and distributions of assets with such series of our preferred stock are in arrears, no shares of any such series of preferred stock or such other series of preferred stock will be redeemed (whether by mandatory or optional redemption) unless all such shares are simultaneously redeemed, and we will not purchase or otherwise acquire any such shares; provided, however, that the foregoing will not prevent the purchase or acquisition of such shares of preferred stock of such series or of shares of such other series of preferred stock pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of preferred stock of such series and, unless the full cumulative dividends on all outstanding shares of any cumulative preferred stock of such series and any other stock ranking on a parity with such series as to dividends and upon liquidation shall have been paid or contemporaneously are declared and paid for all past dividend periods, we shall not purchase or otherwise acquire directly or indirectly any shares of preferred stock of such series (except by conversion into or exchange for our stock ranking junior to the preferred stock of such series as to dividends and upon liquidation). Notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each holder of record of shares of preferred stock to be redeemed at the address shown on our stock transfer books. Conversion Rights The terms, if any, on which shares of preferred stock of any series may be exchanged for or converted (mandatorily or otherwise) into shares of our common stock or another series of our preferred stock will be set forth in the prospectus supplement relating thereto. Voting Rights Except as indicated below or in a prospectus supplement relating to a particular series of our preferred stock, or except as required by applicable law, holders of our preferred stock will not be entitled to vote for any purpose. Unless otherwise stated in a prospectus supplement relating to a particular series of our preferred stock, so long as any shares of preferred stock remain outstanding, we shall not, without the consent or the affirmative vote of the holders of a majority of the shares of each series of preferred stock outstanding at the time given in person or by proxy, either in writing or at a meeting (such series voting separately as a class) (i) authorize, create, or issue, or increase the authorized or issued amount of, any class or series of stock ranking prior to such series of preferred stock with respect to payment of dividends, or the distribution of assets on liquidation, dissolution, or winding up or reclassifying any authorized stock of the company into any such shares, or create, authorize, or issue any obligation or security convertible into or evidencing the right to purchase any such shares and (ii) to repeal, amend, or otherwise change any of the provisions applicable to the preferred stock of such series in any manner that materially and adversely affects the powers, preferences, voting power, or other rights or privileges of such series of the preferred stock or the holders thereof; provided, however, that any increase in the amount of our authorized preferred stock or the creation or issuance of other series of preferred stock, or any increase in the amount of authorized shares of such series or of any other series of preferred stock, in each case ranking on a parity with or junior to our preferred stock of such series, shall not be deemed to materially and adversely affect such rights, preferences, privileges, or voting powers. The foregoing voting provisions will not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding shares of our preferred stock shall have been redeemed or called for redemption and sufficient funds shall have been deposited in trust to effect such redemption. Transfer Agent and Registrar The transfer agent, dividend and redemption price disbursement agent, and registrar for shares of each series of our preferred stock will be set forth in the prospectus supplement relating thereto. 17 |
Certain Provisions of the Charter, Bylaws, and Tennessee LawGeneral The provisions of our charter and bylaws and Tennessee statutory law described in this section may delay or make more difficult acquisitions or changes of control of the company that are not approved by our board of directors. Such provisions have been implemented to enable us to develop our business in a manner that will foster our long-term growth without the disruption of the threat of a takeover not deemed by our board of directors to be in the best interests of the company and our shareholders. Directors Our bylaws provide that the number of directors shall be no fewer than three nor more than fifteen, with the exact number to be established by our board of directors and subject to change from time to time as determined by the board of directors. Vacancies on the board of directors (including vacancies created by an increase in the number of directors) may be filled by our board of directors, acting by a majority of the remaining directors then in office, or by a plurality of the votes cast by the shareholders at a meeting at which a quorum is present. Officers are elected annually by and serve at the pleasure of the board of directors. Our charter and bylaws provide that our board of directors is divided into three classes of as nearly equal size as possible, and the term of office of each class expires in consecutive years so that each year only one class is elected. Our charter also provides that directors may be removed only for cause and only by (i) the affirmative vote of the holders of a majority of the voting power of all the shares of our capital stock then entitled to vote in the election of directors, voting together as a single class, unless the vote of a special voting group is otherwise required by law; or (ii) the affirmative vote of a majority of our entire board of directors then in office. The overall effect of these provisions in our charter and bylaws may be to render more difficult a change in control of the company or the removal of incumbent management. Advance Notice for Shareholder Proposals or Making Nominations at Meetings Our bylaws establish an advance notice procedure for shareholder proposals to be brought before a meeting of our shareholders and for nominations by shareholders of candidates for election as directors at an annual meeting or a special meeting at which directors are to be elected. Subject to any other applicable requirements, only such business may be conducted at a meeting of shareholders as has been brought before the meeting by, or at the direction of, our board of directors, or by a shareholder who has given to our Secretary timely written notice, in proper form, of the shareholder’s intention to bring that business before the meeting. The presiding officer at such meeting has the authority to make such determinations. Only persons who are selected and recommended by our board of directors, or any committee of our board of directors designated to make nominations, or who are nominated by a shareholder who has given timely written notice, in proper form, to the Secretary prior to a meeting at which directors are to be elected, will be eligible for election as directors of the company. To be timely, notice of nominations or other business to be brought before any meeting must be received by our Secretary not later than 120 days in advance of the anniversary date of our proxy statement for the previous year’s annual meeting or, in the case of special meetings, at the close of business on the tenth day following the date on which notice of such meeting is first given to shareholders. The notice of any shareholder proposal or nomination for election as director must set forth various information required under our bylaws. The person submitting the notice of nomination and any person acting in concert with such person must provide, among other things, the name and address under which they appear on our books (if they so appear) and the class and number of shares of our capital stock that are beneficially owned by them. 18 |
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Amendment of the Bylaws and Charter Our bylaws provide that a majority of the members of our board of directors who are present at any regular or special meeting or, subject to greater voting requirements imposed by our charter, the holders of a majority of the voting power of all shares our capital stock represented at a regular or special meeting have the power to amend, alter, change, or repeal the bylaws. Any proposal to amend, alter, change, or repeal provisions of our charter relating to staggered terms for directors, and limitations on the ability of shareholders to call a shareholders’ meeting or to remove directors require approval by the affirmative vote of both a majority of the members of our board of directors then in office and the holders of three-fourths of the voting power of all of the shares of our capital stock entitled to vote on the amendments. Other amendments to our charter require the affirmative vote of both a majority of the members of our board of directors then in office and the holders of a majority of the voting power of all of the shares of our capital stock entitled to vote on the amendments, with shareholders entitled to dissenters’ rights as a result of the charter amendment, voting together as a single class. Shareholders entitled to dissenters’ rights as a result of a charter amendment are those whose rights would be materially and adversely affected because the amendment (i) alters or abolishes a preferential right of the shares; (ii) creates, alters, or abolishes a right in respect of redemption; (iii) alters or abolishes a preemptive right; (iv) excludes or limits the right of the shares to vote on any matter, or to cumulate votes, other than a limitation by dilution through issuance of shares or other securities with similar voting rights; or (v) reduces the number of shares held by such holder to a fraction if the fractional share is to be acquired for cash. In general, however, under the Tennessee Business Corporation Act no shareholder is entitled to dissenters’ rights if the security he or she holds is listed on a national securities exchange, such as the New York Stock Exchange. Anti-Takeover Legislation The Tennessee Business Combination Act provides, among other things, that any corporation to which the Combination Act applies, including the company, shall not engage in any “business combination” with an “interested shareholder” for a period of five years following the date that such shareholder became an interested shareholder unless prior to such date the board of directors of the corporation approved either the business combination or the transaction which resulted in the shareholder becoming an interested shareholder. The Combination Act defines “business combination,” generally, to mean any: (i) merger or consolidation; (ii) share exchange; (iii) sale, lease, exchange, mortgage, pledge, or other transfer (in one transaction or a series of transactions) of assets representing 10% or more of (A) the market value of consolidated assets, (B) the market value of the corporation’s outstanding shares or (C) the corporation’s consolidated net income; (iv) issuance or transfer of shares from the corporation to the interested shareholder; (v) plan of liquidation; (vi) transaction in which the interested shareholder’s proportionate share of the outstanding shares of any class of securities is increased; or (vii) financing arrangements pursuant to which the interested shareholder, directly or indirectly, receives a benefit except proportionately as a shareholder. The Combination Act defines “interested shareholder,” generally, to mean any person who is the beneficial owner, either directly or indirectly, of 10% or more of any class or series of the outstanding voting stock, or any affiliate or associate of the corporation who has been the beneficial owner, either directly or indirectly, of 10% or more of the voting power of any class or series of the corporation’s stock at any time within the five-year period preceding the date in question. Consummation of a business combination that is subject to the five-year moratorium is permitted after such period if the transaction (i) complies with all applicable charter and bylaw requirements and applicable Tennessee law and (ii) is approved by at least two-thirds of the outstanding voting stock not beneficially owned by the interested shareholder, or when the transaction meets certain fair price criteria. The fair price criteria include, among others, the requirement that the per share consideration received in any such business combination by each of the shareholders is equal to the highest of (i) the highest per share price paid by the interested shareholder during the preceding five-year period for shares of the same class or series plus interest thereon from such date at a treasury bill rate less the aggregate amount of any cash dividends paid and the market value of any dividends paid other than in cash since such earliest date, up to the amount of such interest; (ii) the highest preferential amount, if any, such class or series is entitled to receive on liquidation; or (iii) the market value of the shares on either the date the business combination is announced or the date when the interested shareholder reaches the 10% threshold, whichever is higher, plus interest thereon less dividends as noted above. The Tennessee Control Share Acquisition Act prohibits certain shareholders from exercising in excess of 20% of the voting power in a corporation acquired in a “control share acquisition,” as defined in the Acquisition Act, unless such voting rights have been previously approved by the disinterested shareholders of the corporation. We elected not to make the Acquisition Act applicable to us. No assurance can be given that such election, which must be expressed in a charter or bylaw amendment, will not be made in the future. 19 |
Conversion RightsThe terms, if any, on which our debt securities of any series may be exchanged for or converted into shares of our common stock or debt securities of another series will be set forth in the prospectus supplement relating thereto. The conversion price will be subject to adjustment under certain conditions, including (i) the payment of dividends (and other distributions) in shares of common stock on any class of our capital stock; (ii) subdivisions, combinations, and reclassifications of our common stock; (iii) the issuance to all or substantially all holders of our common stock of rights or warrants entitling them to subscribe for or purchase shares of common stock at a price per share (or having a conversion price per share) less than the then current market price; and (iv) distributions to all or substantially all holders of shares of our common stock of evidences of indebtedness or assets (including securities, but excluding those rights, warrants, dividends, and distributions referred to above and dividends and distributions not prohibited under the terms of the indenture), subject to the limitation that all adjustments by reason of any of the foregoing would not be made until they result in a cumulative change in the conversion price of at least 1.0%. No adjustments in the conversion price of our debt securities will be made for regular quarterly or other periodic or recurring cash dividends or distributions. In the event that we effect any capital reorganization or reclassification of our shares of common stock or consolidate or merge with or into any trust or corporation (other than a consolidation or merger in which we are the surviving entity) or shall sell or transfer substantially all our assets to any other trust or corporation, the holders of our debt securities of any series shall, if entitled to convert such debt securities at any time after such transaction, receive upon conversion thereof, in lieu of each share of common stock into which the debt securities of such series would have been convertible prior to such transaction, the same kind and amount of stock and other securities, cash, or property as shall have been issuable or distributable in connection with such transaction with respect to each share of our common stock. A conversion price adjustment made according to the provisions of our debt securities of any series (or the absence of provisions for such an adjustment) might result in a constructive distribution to the holders of debt securities of such series or holders of shares of our common stock that would be subject to taxation as a dividend. We may, at our option, make such reductions in the conversion price, in addition to those set forth above, as our board of directors deems advisable to avoid or diminish any income tax to holders of shares of common stock resulting from any dividend or distribution of shares of our common stock (or rights to acquire shares of our common stock) or from any event treated as such for income tax purposes or for any other reason. Our board of directors will also have the power to resolve any ambiguity or correct any error in the adjustments made pursuant to these provisions and its actions in so doing shall be final and conclusive. Fractional shares of our common stock will not be issued upon conversion but, in lieu thereof, we will pay a cash adjustment based upon market price. The holders of our debt securities of any series at the close of business on an interest payment record date shall be entitled to receive the interest payable on such debt securities on the corresponding interest payment date notwithstanding the conversion thereof. Debt securities surrendered for conversion during the period from the close of business on any record date for the payment of interest to the opening of business on the corresponding interest payment date, however, must be accompanied by payment of an amount equal to the interest payable on such interest payment date. Holders of our debt securities of any series who convert debt securities of such series on an interest payment date will receive the interest payable by us on such date and need not include payment in the amount of such interest upon surrender of such debt securities for conversion. Except as set forth above, no payment or adjustment is to be made on conversion for interest accrued on the debt securities of any series or for dividends on shares of our common stock. 21 |
Optional RedemptionOur debt securities of any series may be subject to redemption as permitted or required by the terms of such debt securities on at least 30 days’ prior notice by mail. SubordinationThe indebtedness evidenced by our debt securities of any series may be subordinated and junior in right of payment to the extent set forth in the indenture to the prior payment in full of amounts then due or thereafter created on all Senior Indebtedness (as defined below). The terms, if any, on which our debt securities of any series may be subordinated and junior in right of payment to the prior payment in full of amounts then due or thereafter created on all Senior Indebtedness will be set forth in the prospectus supplement relating thereto. We shall not make any payment on account of principal of (or premium, if any) or interest on the debt securities of any series or on account of the purchase or other acquisition of debt securities of any series, if there shall have occurred and be continuing a default with respect to any Senior Indebtedness permitting the holders to accelerate the maturity thereof or with respect to the payment of any Senior Indebtedness, and such default shall be the subject of a judicial proceeding or we shall have received notice of such default from any holder of Senior Indebtedness, unless and until such default or event of default shall have been cured or waived or shall have ceased to exist. By reason of these provisions, in the event of default on any Senior Indebtedness, whether now outstanding or hereafter issued, payment of principal of (and premium, if any) and interest on our debt securities of any series may not be permitted to be made until such Senior Indebtedness is paid in full, or the event of default on such Senior Indebtedness is cured or waived. Upon any acceleration of the principal of our debt securities or any distribution of our assets upon any receivership, dissolution, winding-up, liquidation, reorganization, or similar proceedings, whether voluntary or involuntary, or in bankruptcy or insolvency, all amounts due or to become due upon all Senior Indebtedness must be paid in full before the holders of our debt securities of any series or the trustee are entitled to receive or retain any assets so distributed in respect of our debt securities. By reason of this provision, in the event of insolvency, holders of our debt securities of any series may recover less, ratably, than holders of Senior Indebtedness. “Senior Indebtedness” is defined to mean the principal, premium, if any, and unpaid interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the company whether or not a claim for post-filing interest is allowed in such proceeding), fees, charges, expenses, reimbursement and indemnification obligations, and all other amounts payable under or in respect of Indebtedness of the company for money borrowed, whether any such Indebtedness exists as of the date of the indenture or is thereafter created, incurred, assumed or guaranteed (other than Indebtedness owed to a subsidiary of the company, Indebtedness of the company that is expressly pari passu with our debt securities, or Indebtedness that is expressly subordinated to our debt securities). There is no limit on the amount of Senior Indebtedness that we may incur. “Indebtedness” with respect to any Person (as defined in the indenture) is defined to mean: |
| (i) all indebtedness for borrowed money whether or not evidenced by a promissory note, draft, or similar instrument; |
| (ii) that portion of obligations with respect to any lease that is properly classified as a liability on a balance sheet in accordance with generally accepted accounting principles; |
| (iii) notes payable and drafts accepted representing extensions of credit; |
| (iv) any balance owed for all or any part of the deferred purchase price of property or services, which purchase price is due more than six months from the date of incurrence of the obligation in respect thereof (except any such balance that constitutes (a) a trade payable or an accrued liability arising in the ordinary course of business or (b) a trade draft or note payable issued in the ordinary course of business in connection with the purchase of goods or services), if and to the extent such debt would appear as a liability upon a balance sheet of such person prepared in accordance with generally accepted accounting principles; and |
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| (v) any deferral, amendment, renewal, extension, supplement, or refunding of the indebtedness described in any of the preceding clauses (i) through (iv); provided, however, that, in computing the “Indebtedness” of any Person, there shall be excluded any particular indebtedness if, upon or prior to the maturity thereof and at the time of determination of such indebtedness, there shall have been deposited with a depositary in trust money (or evidences of indebtedness if permitted by the instrument creating such indebtedness) in the necessary amount to pay, redeem, or satisfy such indebtedness as it becomes due, and the amount so deposited shall not be included in any computation of the assets of such Person. |
Dividends, Distributions, and Acquisitions of Common StockWe will not (i) declare or pay any dividend, or make any distribution on our common stock to our shareholders (other than dividends or distributions payable in common stock), (ii) purchase, redeem, or otherwise acquire or retire for value any of our common stock or (iii) permit any of our subsidiaries to purchase, redeem or otherwise acquire or retire for value any of our common stock, if at the time of such action an Event of Default has occurred and is continuing or would exist immediately after such action. The foregoing, however, will not prevent (i) the payment of any dividend within 60 days after the date of declaration when the payment would have complied with the foregoing provision on the date of declaration; or (ii) our retirement of any of our common stock by exchange for, or out of the proceeds of the substantially concurrent sale of, other common stock. Additional CovenantsAny additional covenants of the company with respect to a series of our debt securities will be set forth in the prospectus supplement relating thereto. Modification of the IndentureUnder the indenture, with certain exceptions, our rights and obligations with respect to any series of debt securities and the rights of Holders (as defined in the indenture) of such series may only be modified by us and the trustee with the consent of the Holders of at least a majority in principal amount of the outstanding debt securities of such series. Without the consent of each Holder of any debt securities affected, however, an amendment, waiver, or supplement may not (i) reduce the principal of, or rate of interest on, any debt securities; (ii) change the stated maturity date of the principal of, or any installment of interest on, any debt securities; (iii) waive a default in the payment of the principal amount of, or the interest on, or any premium payable on redemption of, any debt securities; (iv) change the currency for payment of the principal of, or premium or interest on, any debt securities; (v) impair the right to institute suit for the enforcement of any such payment when due; (vi) adversely affect any right to convert any debt securities; (vii) reduce the amount of outstanding debt securities necessary to consent to an amendment, supplement, or waiver provided for in the indenture; or (viii) modify any provisions of the indenture relating to the modification and amendment of the indenture or waivers of past defaults, except as otherwise specified. Events of Default, Notice, and WaiverExcept as otherwise set forth in the accompanying prospectus supplement, the following is a summary of certain provisions of the indenture relating to Events of Default (as defined in the indenture), notice, and waiver. The following are Events of Default under the indenture with respect to any series of debt securities: (i) default in the payment of interest on the debt securities of such series when due and payable, which continues for 30 days; (ii) default in the payment of principal of (and premium, if any) on the debt securities when due and payable, at maturity, upon redemption, or otherwise, which continues for five Business Days (as defined in the indenture); (iii) failure to perform any other covenant of the company contained in the indenture or the debt securities of such series that continues for 60 days after written notice as provided in the indenture; (iv) default under any bond, debenture or other Indebtedness of the company or any subsidiary if (a) either (x) such Event of Default results from the failure to pay any such Indebtedness at maturity or (y) as a result of such Event of Default, the maturity of such Indebtedness has been accelerated prior to its expressed maturity and such acceleration shall not be rescinded or annulled or the accelerated amount paid within ten days after notice to us of such acceleration, or such Indebtedness having been discharged, and (b) the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness in default for failure to pay principal or interest thereon, or the maturity of which has been so accelerated, aggregates $10.0 million or more; and (v) certain events of bankruptcy, insolvency, or reorganization relating to the company. 23 |
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If an Event of Default occurs and is continuing with respect to the debt securities of any series, either the trustee or the Holders of a majority in aggregate principal amount of the outstanding debt securities of such series may declare the debt securities due and payable immediately. The indenture provides that the trustee will, within 90 days after the occurrence of any Default (as defined in the indenture) or Event of Default with respect to the debt securities of any series, give to the Holders of debt securities notice of all uncured Defaults and Events of Default known to it, but the trustee will be protected in withholding such notice if it in good faith determines that the withholding of such notice is in the interest of such Holders, except in the case of a default in the payment of the principal of (or premium, if any) or interest on any of the debt securities of such series. The indenture provides that the Holders of a majority in aggregate principal amount of the debt securities of any series then outstanding may direct the time, method, and place of conducting any proceedings for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of such series. The right of a Holder to institute a proceeding with respect to the indenture is subject to certain conditions precedent including notice and indemnity to the trustee, but the Holder has an absolute right to receipt of principal of (and premium, if any) and interest on such Holder’s debt securities on or after the respective due dates expressed in the debt securities, and to institute suit for the enforcement of any such payments. The Holders of a majority in principal amount of the outstanding debt securities of any series then outstanding may on behalf of the Holders of all debt securities of such series waive certain past defaults, except a default in payment of the principal of (or premium, if any) or interest on any debt securities of such series or in respect of certain provisions of the indenture that cannot be modified or amended without the consent of the Holder of each outstanding debt security of such series affected thereby. We will be required to furnish to the trustee annually a statement by certain of our officers stating whether or not they know of any Default or Events of Default and, if they have knowledge of a Default or Event of Default, a description of the efforts to remedy the same. Consolidation, Merger, Sale, or ConveyanceThe indenture provides that we may merge or consolidate with, or sell or convey all, or substantially all, of our assets to any other trust or corporation, provided that (i) either the company shall be the continuing entity, or the successor entity (if other than the company) shall be any entity organized and existing under the laws of the United States or a state thereof or the District of Columbia (although it may, in truth, be owned by a foreign entity) and such entity shall expressly assume by supplemental indenture all of our obligations under the debt securities of any series and the indenture; (ii) immediately after giving effect to such transactions, no Default or Event of Default shall have occurred and be continuing; and (iii) we shall have delivered to the trustee an officers’ certificate and opinion of counsel, stating that the transaction and supplemental indenture comply with the indenture. Global SecuritiesThe debt securities may be issued in whole or in part in global form. Any such global securities will be deposited with a depository, or with a nominee for a depository, identified in the prospectus supplement relating to such global securities. In such case, one or more global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal amount of outstanding debt securities to be represented by such global securities. Unless and until it is exchanged in whole or in part for debt securities in definitive form, a global security may not be transferred except as a whole by the depository for such global security to a nominee of such depository or by a nominee of such depository to such depository or another nominee of such depository or by such depository or any such nominee to a successor for such depository or a nominee of such successor. 24 |
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The prospectus supplement and the warrant agreement relating to any series of warrants will include specific terms of the warrants. These terms include the following: |
| • | the title and aggregate number of warrants; |
| • | the price or prices at which the warrants will be issued; |
| • | the amount of common stock for which the warrant can be exercised and the price or the manner of determining the price or other consideration to purchase the common stock; |
| • | the date on which the right to exercise the warrant begins and the date on which the right expires; |
| • | if applicable, the minimum or maximum amount of warrants that may be exercised at any one time; |
| • | if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each other security; |
| • | any provision dealing with the date on which the warrants and related securities will be separately transferable; |
| • | any mandatory or optional redemption provision; |
| • | the identity of the warrant agent; and |
| • | any other terms of the warrants. |
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The warrants will be represented by certificates. The warrants may be exchanged under the terms outlined in the warrant agreement. We will not charge any service charges for any transfer or exchange of warrant certificates, but we may require payment for tax or other governmental charges in connection with the exchange or transfer. Unless the prospectus supplement states otherwise, until a warrant is exercised, a holder will not be entitled to any payments on or have any rights with respect to the common stock. Exercise of Warrants To exercise the warrants, the holder must provide the warrant agent with the following: |
| • | payment of the exercise price; |
| • | any required information described on the warrant certificates; |
| • | the number of warrants to be exercised; |
| • | an executed and completed warrant certificate; and |
| • | any other items required by the warrant agreement. |
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If a warrant holder exercises only part of the warrants represented by a single certificate, the warrant agent will issue a new warrant certificate for any warrants not exercised. Unless the prospectus supplement states otherwise, no fractional shares will be issued upon exercise of warrants, but we will pay the cash value of any fractional shares otherwise issuable. 26 |
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The exercise price and the number of shares of common stock for which each warrant can be exercised will be adjusted upon the occurrence of events described in the warrant agreement, including the issuance of a common stock dividend or a combination, subdivision or reclassification of common stock. Unless the prospectus supplement states otherwise, no adjustment will be required until cumulative adjustments require an adjustment of at least 1%. From time to time, we may reduce the exercise price as may be provided in the warrant agreement. Unless the prospectus supplement states otherwise, if we enter into any consolidation, merger, or sale or conveyance of our property as an entirety, the holder of each outstanding warrant will have the right to acquire the kind and amount of shares of stock, other securities, property or cash receivable by a holder of the number of shares of common stock into which the warrants were exercisable immediately prior to the occurrence of the event. Modification of the Warrant Agreement The common stock warrant agreement will permit us and the warrant agent, without the consent of the warrant holders, to supplement or amend the agreement in the following circumstances: |
| • | to cure any ambiguity; |
| • | to correct or supplement any provision which may be defective or inconsistent with any other provisions; or |
| • | to add new provisions regarding matters or questions that we and the warrant agent may deem necessary or desirable and which do not adversely affect the interests of the warrant holders. |
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27 |
| (i) our Annual Report on Form 10-K for the fiscal year ended December 31, 2003; |
| (ii) our Quarterly Report on Form 10-Q for the quarter ended March 31, 2004; |
| (iii) our Current Report on Form 8-K filed with the Securities and Exchange Commission on February 12, 2004; |
| (iv) our Current Report on Form 8-K/A filed with the Securities and Exchange Commission on February 12, 2004; |
| (v) our Current Report on Form 8-K filed with the Securities and Exchange Commission on March 4, 2004; |
| (vi) our Current Report on Form 8-K filed with the Securities and Exchange Commission on March 4, 2004; |
| (vii) our Current Report on Form 8-K filed with the Securities and Exchange Commission on May 5, 2004; |
| (viii) our Current Report on Form 8-K filed with the Securities and Exchange Commission on May 5, 2004; |
| (ix) our Current Report on Form 8-K filed with the Securities and Exchange Commission on June 10, 2004; |
| (x) the description of our common stock contained in our Registration Statement on Form 8-A, filed with the Securities and Exchange Commission 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 securities offered hereby; and |
| (xi) the description of our common stock purchase rights contained in our Registration Statement on Form 8-A, filed with the Securities and Exchange Commission 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 securities offered hereby. |
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Notwithstanding the foregoing, information furnished under Items 9 and 12 of our Current Reports on Form 8-K, including the related exhibits, is not incorporated by reference in this prospectus and the registration statement. Each document filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this prospectus and prior to the termination of any offering pursuant to this prospectus and a prospectus supplement, other than information furnished pursuant to Items 9 or 12 of Form 8-K (and the related exhibits), shall be deemed to be incorporated by reference into this prospectus and to be a part hereof from the date such document is filed with the Securities and Exchange Commission. Any statement contained herein, or in any document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this prospectus and the registration statement of which this prospectus is a part to the extent that a statement contained herein, or in any subsequently filed document that 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 part of this prospectus and the registration statement of which this prospectus is a part. All information appearing in this prospectus is qualified in its entirety by the information and financial statements (including notes thereto) appearing in the documents incorporated herein by reference. 30 |
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This prospectus incorporates documents by reference that are not presented herein or delivered herewith. These documents (other than exhibits to such documents that are not specifically incorporated by reference into such documents) are available without charge, upon written or oral request by any person to whom this prospectus has been delivered, from George T. Hicks, Secretary, 111 Westwood Place, Suite 200, Brentwood, Tennessee 37027, telephone (615) 221-2250. 31 |
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We have not authorized any person to give any information or to make any representation in connection with this offering other than those contained in this prospectus, and, if given or made, such information or representation must not be relied upon as having been so authorized. This prospectus does not constitute an offer to sell or a solicitation of an offer to buy by anyone in any jurisdiction in which such offer to sell is not authorized, or in which the person is not qualified to do so or to any person to whom it is unlawful to make such offer or solicitation. Neither the delivery of this prospectus nor any sale hereunder shall, under any circumstances, create any implication that there has been no change in our affairs since the date hereof or that the information contained herein is correct as of any time subsequent to its date. TABLE OF CONTENTS |
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SECURITIES |
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| P R O S P E C T U S |
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, 2004
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PART IIINFORMATION NOT REQUIRED IN PROSPECTUSItem 14. Other Expenses of Issuance and Distribution.The following table sets forth the aggregate estimated costs and expenses of the Registrant based upon the number of offerings currently contemplated to be made under the Registration Statement. |
| SEC registration fee | $ | 31,675 |
| *NYSE fee | 25,650 | |
| *Accounting fees and expenses | 30,000 | |
| *Legal fees and expenses | 50,000 | |
| *Printing and engraving expenses | 25,000 | |
| *Trustee’s fees and expenses | 15,000 | |
| *Miscellaneous expenses | 15,000 | |
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| *Total | $ | 192,325 |
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| * | Estimated |
Item 15. 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 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 expense 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. Our charter and bylaws provide that we will indemnify from liability, and advance expenses to, any of our present or former directors or officers 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 will be personally liable to us or any of our 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 us or our 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. We have purchased directors’ and officers’ liability insurance, the effect of which is to indemnify the directors and officers of the company and its subsidiaries against certain damages and expenses because of certain claims made against them caused by their negligent act, error or omission. II-1 |
Item 16. Exhibits.The following exhibits are filed as part of the registration statement or incorporated herein by reference: |
| Exhibit Number |
Description | |||
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| 1 | — | Form of Underwriting Agreement* | ||
| 3.1 | — | Charter of the Registrant (restated electronically for SEC filing purposes only)** | ||
| 3.2 | — | Bylaws of the Registrant, as amended*** | ||
| 4.1 | — | Specimen Common Stock Certificate**** | ||
| 4.2 | — | Article 8 of the Charter of the Registrant (included in Exhibit 3.1) | ||
| 4.3 | — | Rights Agreement, dated November 18, 1998, between the Registrant and American Stock Transfer and Trust Company***** | ||
| 4.4 | — | Form of Indenture | ||
| 4.5 | — | Form of Debt Security* | ||
| 4.6 | — | Form of Stock Certificate* | ||
| 4.7 | — | Form of Common Stock Warrant Agreement* | ||
| 5 | — | Opinion of Bass, Berry & Sims PLC | ||
| 12 | — | Statement regarding computation of ratios of earnings to fixed charges | ||
| 23.1 | — | Consent of KPMG LLP | ||
| 23.2 | — | Consent of Bass, Berry & Sims PLC (included in Exhibit 5) | ||
| 24 | — | Power of Attorney (included on pages II-5 and II-6) | ||
| 25 | — | Statement of Eligibility of Trustee on Form T-1 with respect to Debt Securities****** |
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* To be incorporated by reference herein in connection with the offering of each series of securities. ** Incorporated by reference to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2002. *** Incorporated by reference to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 1998. **** Incorporated by reference to the Registrant’s Registration Statement on Form S-1 (Registration No. 333-23197). ***** Incorporated by reference to the Registrant’s Current Report on Form 8-K, dated November 24, 1998. ****** To be filed or incorporated by reference in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939 in connection with a particular offering of debt securities. II-2 |
Item 17. 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: |
| (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 or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; |
| (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; |
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs 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 this Registration Statement. |
| (2) That, for the purpose of determining any liability under the Securities Act, each post-effective amendment 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. |
| (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. |
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(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 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. (d) The undersigned Registrant hereby undertakes that: II-3 |
| (1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. |
| (2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to 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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(e) The undersigned Registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act of 1939 in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act. II-4 |
SIGNATURESPursuant 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-3 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 10th day of June, 2004. |
| AMERICAN RETIREMENT
CORPORATION By: /s/ W.E. Sheriff ———————————————————— W.E. Sheriff Chairman, Chief Executive Officer and President |
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Know all men by these presents, that each person whose signature appears below constitutes and appoints W. E. Sheriff and Bryan D. Richardson (with full power to each of them to act alone) as his or her true and lawful attorney-in-fact and agent, with full power of substitution, for him or her and in his or her name, place and stead in any and all capacities to sign any or all amendments or post-effective amendments to this registration statement, including post-effective amendments filed pursuant to Rule 462(b) of the Securities Act, and to file the same with all exhibits thereto and other documents in connection therewith, with the SEC, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state securities laws, and to file the same, together with all other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, 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, thereby ratifying and confirming all that said attorney-in-fact and agents 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, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. |
| Signature | Title | Date | ||
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| /s/ W.E. Sheriff | Chairman,
Chief Executive Officer and President (Principal Executive Officer) |
June 10, 2004 | ||
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| W.E. Sheriff | ||||
| /s/ Bryan D. Richardson | Executive
Vice President - Finance and Chief Financial Officer (Principal Financial and Accounting Officer) |
June 10, 2004 | ||
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| Bryan D. Richardson | ||||
| /s/ Frank M. Bumstead | Director | June 10, 2004 | ||
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| Frank M. Bumstead | ||||
| /s/ Christopher J. Coates | Director | June 10, 2004 | ||
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| Christopher J. Coates | ||||
| /s/ Donald D. Davis | Director | June 10, 2004 | ||
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| Donald D. Davis |
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II-5 |
| Signature | Title | Date | ||
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| /s/ John C. McCauley | Director | June 10, 2004 | ||
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| John C. McCauley | ||||
| /s/ John A. Morris, Jr., M.D. | Director | June 10, 2004 | ||
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| John A. Morris, Jr., M.D. | ||||
| /s/ Daniel K. O’Connell | Director | June 10, 2004 | ||
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| Daniel K. O’Connell | ||||
| /s/ J. Edward Pearson | Director | June 10, 2004 | ||
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| J. Edward Pearson | ||||
| /s/ Nadine C. Smith | Director | June 10, 2004 | ||
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| Nadine C. Smith | ||||
| /s/ Lawrence J. Stuesser | Director | June 10, 2004 | ||
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| Lawrence J. Steusser |
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II-6 |
EXHIBIT INDEX |
| Exhibit Number |
Description | |||
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| 1 | — | Form of Underwriting Agreement* | ||
| 3.1 | — | Charter of the Registrant (restated electronically for SEC filing purposes only)** | ||
| 3.2 | — | Bylaws of the Registrant, as amended*** | ||
| 4.1 | — | Specimen Common Stock Certificate**** | ||
| 4.2 | — | Article 8 of the Charter of the Registrant (included in Exhibit 3.1) | ||
| 4.3 | — | Rights Agreement, dated November 18, 1998, between the Registrant and American Stock Transfer and Trust Company***** | ||
| 4.4 | — | Form of Indenture | ||
| 4.5 | — | Form of Debt Security* | ||
| 4.6 | — | Form of Stock Certificate* | ||
| 4.7 | — | Form of Common Stock Warrant Agreement* | ||
| 5 | — | Opinion of Bass, Berry & Sims PLC | ||
| 12 | — | Statement regarding computation of ratios of earnings to fixed charges | ||
| 23.1 | — | Consent of KPMG LLP | ||
| 23.2 | — | Consent of Bass, Berry & Sims PLC (included in Exhibit 5) | ||
| 24 | — | Power of Attorney (included on pages II-5 and II-6) | ||
| 25 | — | Statement of Eligibility of Trustee on Form T-1 with respect to Debt Securities****** |
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* To be incorporated by reference herein in connection with the offering of each series of securities. ** Incorporated by reference to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2002. *** Incorporated by reference to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 1998. **** Incorporated by reference to the Registrant’s Registration Statement on Form S-1 (Registration No. 333-23197). ***** Incorporated by reference to the Registrant’s Current Report on Form 8-K, dated November 24, 1998. ****** To be filed or incorporated by reference in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939 in connection with a particular offering of debt securities. II-7 |