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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 17, 1998
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------------
SUNTERRA CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 95-4582157
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1875 SOUTH GRANT STREET, SUITE 650 94402
SAN MATEO, CALIFORNIA (Zip Code)
(Address of principal executive offices)
----------------
THE 1996 EQUITY PARTICIPATION PLAN, AS AMENDED
----------------
ANDREW D. HUTTON Copy to:
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY JOHN M. NEWELL, ESQ.
SUNTERRA CORPORATION LATHAM & WATKINS
1875 SOUTH GRANT STREET, SUITE 650 633 WEST FIFTH STREET, SUITE 4000
SAN MATEO, CALIFORNIA 94402 LOS ANGELES, CALIFORNIA 90071
(650) 312-7171 (213) 485-1234
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Calculation of Registration Fee
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Proposed
Amount Proposed Maximum
of Shares Maximum Aggregate Amount of
Title of Each Class of to be Offering Price Offering Registration
Securities to be Registered Registered(1) Per Share(2) Price(2) Fee (3)
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<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value 1,630,000 $8.56 $13,952,800 $4,116
</TABLE>
(1) The Company previously registered 2,625,000 and 1,125,000 shares under
the 1996 Equity Participation Plan, as amended, on November 1, 1996 and
November 12, 1997, respectively.
(2) Estimated solely for the purpose of calculating the registration fee
for the 1,630,000 additional shares registered herewith. Pursuant to
Rule 457(c) of the Securities Act of 1933, as amended, the calculation
is based on the average of the high and low trading prices of the
Company's common stock on the New York Stock Exchange on September 17,
1998.
(3) Relates solely to the 1,630,000 additional shares registered herewith.
<PAGE> 2
This Registration Statement on Form S-8 is being filed by Sunterra
Corporation, a Maryland corporation (the "Company"), to increase the number of
shares registered in connection with the Company's 1996 Equity Participation
Plan, as amended (the "Equity Plan"), from 3,750,000 shares to 5,380,000 shares.
The Company previously filed Registration Statements on Form S-8 on November 1,
1996 and November 12, 1997 (File No. 333-15361) to register 2,625,000 and
1,125,000 shares under the Equity Plan, respectively. The contents of such
Registration Statements are incorporated herein by reference.
PART II
Item 3. Incorporation of Documents by Reference
The following documents filed with the Commission by the Company are
incorporated in this Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) The Company's Amended Annual Report on Form 10-K/A for the
year ended December 31, 1997 filed with the Commission on
April 6, 1998.
(c) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, and June 30, 1998;
(d) The Company's Proxy Statement dated April 13, 1998 relating to
the Annual Meeting of Stockholders held on May 15, 1998;
(e) The Company's Current Reports on Form 8-K filed with the
Commission on April 21, July 21, and September 10, 1998; and
(f) Description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the
Commission on January 21, 1998.
The discussion of the matters in Notes 3 and 5 of the Form 10-Q for
the three and six months ended June 30, 1998 (incorporated herein by reference)
should be read in conjunction with the audited financial statements
incorporated herein by reference.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, are
incorporated by reference in this Registration Statement and are a part hereof
from the date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
2
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Item 8. Exhibits
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4.1 Indenture dated as of January 15, 1997 by and
between Sunterra Corporation (f/k/a Signature
Resorts, Inc.) and Norwest Bank Minnesota, National
Association, as trustee for the 5.75% Convertible
Subordinated Notes of Sunterra Corporation due 2007
(incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-1 (No.
333-30285))
4.2 Indenture dated as of August 1, 1997 by and between
Sunterra Corporation (f/k/a Signature Resorts, Inc.)
and Norwest Bank Minnesota, National Association, as
trustee for the 9.75% Senior Subordinated Notes of
Sunterra Corporation due 2007 (incorporated by
reference to Exhibit 4.2 to the Company's
Registration Statement on Form S-3 (No.
333-30285))
4.3 Indenture dated as of April 15, 1998 by and between
Sunterra Corporation (f/k/a Signature Resorts, Inc.)
and Norwest Bank Minnesota, National Association, as
trustee for the 9.25% Senior Notes of Sunterra
Corporation due 2006 (incorporated by reference to
Exhibit 4.3 to the Company's Registration Statement
on Form S-4 (No. 333-51803))
4.4 Indenture dated as of May 1, 1998 by and between
Sunterra Finance L.L.C., Sunterra Corporation (f/k/a
Signature Resorts, Inc.) and LaSalle National Bank,
as trustee for the 6.36% Class A-1, 6.85% Class A-2,
and the 7.07% Class A-3 Receivable-Backed Notes
(incorporated by reference to Exhibit 10.1 to the
Company's quarterly report on Form
10-Q for the quarter ended June 30, 1998)
*5.1 Opinion of Ballard Spahr Andrews & Ingersoll
*10.1 Third Amendment to 1996 Equity Participation Plan of
Sunterra Corporation (f/k/a Signature Resorts,
Inc.), as amended, dated as of May 15, 1998
*23.1 Consent of Ballard Spahr Andrews & Ingersoll
(included as part of Exhibit 5.1)
*23.2 Consent of Arthur Andersen LLP
*23.3 Consent of Ernst & Young LLP
*23.4 Consent of KPMG
24 Power of Attorney (included on the signature of this
Registration Statement)
</TABLE>
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*Filed herewith
3
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of San Mateo, California, on this 17th day of
September, 1998.
SUNTERRA CORPORATION
By: /s/ Andrew D. Hutton
---------------------------------------------
Andrew D. Hutton
Vice President and Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Andrew J. Gessow, Steven C. Kenninger, Michael A. Depatie and Andrew D. Hutton,
and each of them, with full power to act without the other, such person's true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement, and any and all amendments
thereto (including pre- and post-effective amendments) or any registration
statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, and to file the same,
with exhibits and schedules thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing necessary or desirable to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-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 of 1933, as amended,
this Registration Statement on Form S-8 has been signed below by the following
persons in their capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Osamu Kaneko Chairman of the Board September 17, 1998
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Osamu Kaneko
/s/ Andrew J. Gessow Director and Chief Executive Officer September 17, 1998
- ---------------------------------- (Principal Executive Officer)
Andrew J. Gessow
s/ Steven C. Kenninger Director and President September 17, 1998
- ----------------------------------
Steven C. Kenninger
/s/ Michael A. Depatie Director, Executive Vice President September 17, 1998
- ---------------------------------- and Chief Financial Officer (Principal
Michael A. Depatie Financial Officer)
/s/ James E. Noyes Chief Operating Officer and September 17, 1998
- ---------------------------------- Director
James E. Noyes
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4
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<TABLE>
<S> <C> <C>
/s/ Charles C. Frey
- ---------------------------------- Senior Vice President and Chief September 17, 1998
Charles C. Frey Accounting Officer (Principal Accounting
Officer)
/s/ Sanford R. Climan Director September 17, 1998
- ----------------------------------
Sanford R. Climan
/s/ Joshua S. Friedman Director September 17, 1998
- ----------------------------------
Joshua S. Friedman
/s/ W. Leo Kiley III Director September 17, 1998
- ----------------------------------
W. Leo Kiley III
/s/ Adam M. Aron Director September 17, 1998
- ----------------------------------
Adam M. Aron
/s/ J. Taylor Crandall Director September 17, 1998
- ----------------------------------
J. Taylor Crandall
</TABLE>
5
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INDEX TO EXHIBITS
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EXHIBIT PAGE
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<S> <C> <C>
4.1 Indenture dated as of January 15, 1997 by and between Sunterra
Corporation (f/k/a Signature Resorts, Inc.) and Norwest Bank Minnesota,
National Association, as trustee for the 5.75% Convertible Subordinated
Notes of Sunterra Corporation due 2007 (incorporated by reference to
Exhibit 4.1 to the Company's Registration Statement on Form S-1 (No.
333-30285)
4.2 Indenture dated as of August 1, 1997 by and between Sunterra Corporation
(f/k/a Signature Resorts, Inc.) and Norwest Bank Minnesota, National
Association, as trustee for the 9.75% Senior Subordinated Notes of
Sunterra Corporation due 2007 (incorporated by reference to Exhibit 4.2
to the Company's Registration Statement on Form S-3 (No. 333-30285)
4.3 Indenture dated as of April 15, 1998 by and between Sunterra Corporation
(f/k/a Signature Resorts, Inc.) and Norwest Bank Minnesota, National
Association, as trustee for the 9.25% Senior Notes of Sunterra
Corporation due 2006 (incorporated by reference to Exhibit 4.3 to the
Company's Registration Statement on Form S-4 (No. 333-51803))
4.4 Indenture dated as of May 1, 1998 by and between Sunterra Finance
L.L.C., Sunterra Corporation (f/k/a Signature Resorts, Inc.) and LaSalle
National Bank, as trustee for the 6.36% Class A-1, 6.85% Class A-2, and
the 7.07% Class A-3 Receivable-Backed Notes (incorporated by reference
to Exhibit 10.1 to the Company's quarterly report on Form 10-Q for the
quarter ended June 30, 1998)
*5.1 Opinion of Ballard Spahr Andrews & Ingersoll
*10.1 Third Amendment to 1996 Equity Participation Plan of Sunterra
Corporation (f/k/a Signature Resorts, Inc.), as amended, dated as of May
15, 1998
*23.1 Consent of Ballard Spahr Andrews & Ingersoll (included as part of
Exhibit 5.1)
*23.2 Consent of Arthur Andersen LLP
*23.3 Consent of Ernst & Young LLP
*23.4 Consent of KPMG
24 Power of Attorney (included on the signature page of this Registration
Statement)
</TABLE>
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*Filed herewith
6
<PAGE> 1
Exhibit 5.1
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL]
September 16, 1998
Sunterra Corporation
1875 South Grant Street
Suite 650
San Mateo, California 94402
Re: Sunterra Corporation, a Maryland corporation (the "Company") -
Registration Statement on Form S-8 pertaining to One Million Six
Hundred Thirty Thousand (1,630,000) Shares (the "Shares") of common
stock, par value one cent per share ("Common Stock") pursuant to the
1996 Equity Participation Plan, as amended (the "Plan")
Ladies and Gentlemen:
In connection with the registration of the Shares under the Securities Act
of 1933, as amended, by the Company on Form S-8 filed or to be filed with the
Securities and Exchange Commission (the "Commission") on or about September 16,
1998 (the "Registration Statement"), you have requested our opinion with respect
to the matters set forth below.
We have acted as special Maryland corporate counsel for the Company in
connection with the matters described herein. In our capacity as special
Maryland corporate counsel to the Company, we have reviewed and are familiar
with proceedings taken and proposed to be taken by the Company in connection
with the authorization, issuance and sale of the Shares, and for purposes of
this opinion have assumed such proceedings will be timely completed in the
manner presently proposed. In addition, we have relied upon certificates and
advice from the officers of the Company upon which we believe we are justified
in relying and on various certificates from, and documents recorded with, the
State Department of Assessments and Taxation of Maryland (the "SDAT"),
including the
<PAGE> 2
BALLARD SPAHR ANDREWS & INGERSOLL, LLP
Sunterra Corporation
September 16, 1998
Page 2
charter of the Company (the "Charter"), consisting of Articles of Incorporation
filed with the SDAT on May 28, 1996, and Articles of Restatement filed with the
SDAT on July 14, 1998. We have also examined the Bylaws of the Company as
adopted on May 28, 1996 and amended through the date hereof (the "Bylaws") and
resolutions of the Board of Directors of the Company and the stockholders of the
Company adopted on or before the date hereof and in full force and effect on the
date hereof and such other laws, records, documents, certificates, opinions and
instruments as we have deemed necessary to render this opinion.
We have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals and the conformity to the originals
of all documents submitted to us as certified, photostatic or conformed copies.
In addition, we have assumed that each person executing any instrument,
document or certificate referred to herein on behalf of any party is duly
authorized to do so.
Based on the foregoing, and subject to the assumptions and qualifications
set forth herein, it is our opinion that the Shares have been duly reserved for
issuance by the Company as direct stock awards or upon the exercise of options
granted under the Plan, and when such Shares are duly authorized for
issuance by the Board of Directors and are issued and delivered as direct stock
awards or upon the exercise of options under the Plan and the consideration for
such Shares has been received in full by the Company, all in accordance with
the Plan and any such options, such Shares will be validly issued, fully paid
and non-assessable.
We consent to your filing this opinion as an exhibit to the Registration
Statement, and further consent to the filing of this opinion as an exhibit to
the applications to securities commissioners for the various states of the
United States for registration of the Shares.
The opinions expressed herein are limited to the laws of the State of
Maryland and we express no opinion concerning any laws other than the laws of
the State of Maryland. Furthermore, the
<PAGE> 3
BALLARD SPAHR ANDREWS & INGERSOLL, LLP
Sunterra Corporation
September 16, 1998
Page 3
opinions presented in this letter are limited to the matters specifically set
forth herein and no other opinion shall be inferred beyond the matters expressly
stated.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
<PAGE> 1
EXHIBIT 10.1
THIRD AMENDMENT TO 1996 EQUITY PARTICIPATION PLAN
THIS THIRD AMENDMENT TO 1996 EQUITY PARTICIPATION PLAN, dated as of May 15,
1998, is made and adopted by Signature Resorts, Inc., a Maryland corporation
(the "Company"). Capitalized terms used but not otherwise defined herein shall
have the respective meanings ascribed to them in the 1996 Equity Participation
Plan, as amended (as defined below).
RECITALS
WHEREAS, the Company adopted the 1996 Equity Participation Plan of
Signature Resorts, Inc., (as amended, the "1996 Equity Participation Plan") on
June 13, 1996;
WHEREAS, the Company desires to amend the 1996 Equity Participation Plan
to increase the number of shares of common stock of the Company reserved for
issuance thereunder from 3,750,000 shares to 5,380,000 shares;
WHEREAS, this Third Amendment was adopted by the Board of Directors of the
Company on February 27, 1998; and
WHEREAS, this Third Amendment was approved by the stockholders of the
Company on May 15, 1998.
NOW, THEREFORE, in consideration of the foregoing, the Company hereby
amends the 1996 Equity Participation Plan as follows:
1. The second sentence of Section 2.1(a) of the 1996 Equity
Participation Plan is hereby deleted in its entirety and the following is
hereby substituted in lieu thereof:
"The aggregate number of such shares which may be issued upon exercise of
such options or rights or upon any such awards under the Plan shall not
exceed five million three hundred eighty thousand (5,380,000) shares of
Common Stock."
2. This Third Amendment shall be and is hereby incorporated in and forms
a part of the 1996 Equity Participation Plan.
3. All other terms and provisions of the 1996 Equity Participation Plan
shall remain unchanged except as specifically modified herein.
4. The 1996 Equity Participation Plan, as amended by this Third
Amendment, is hereby ratified and confirmed.
5. This Third Amendment shall be interpreted and enforced under the
internal laws of the State of Maryland without regard to conflicts of laws
thereof.
[Signature Page to Follow]
<PAGE> 2
I hereby certify that the foregoing Amendment was duly adopted by the
Board of Directors of Signature Resorts, Inc. on February 27, 1998.
/s/ MICHAEL A. DEPATIE
--------------------------------
Michael A. Depatie
Director, Executive Vice President and
Chief Financial Officer
I hereby certify that the foregoing Amendment was approved by the
Stockholders of Signature Resorts, Inc. on May 15, 1998.
/s/ MICHAEL A. DEPATIE
--------------------------------
Michael A. Depatie
Director, Executive Vice President and
Chief Financial Officer
2
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in the Form S-8 Registration Statement filed by
Sunterra Corporation (formerly Signature Resorts, Inc.) on or around September
16, 1998 under the Securities Act of 1933 to register 1,630,000 shares of $0.01
par value common stock issuable under Sunterra Corporation's 1996 Equity
Participation Plan, as amended, of our report, dated January 26, 1998 (except
with respect to the matters discussed in Note 6, as to which the date is
February 18, 1998 and Note 13, as to which the dates are February 3 and February
18, 1998), included in Sunterra Corporation's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, as amended by Sunterra Corporation's Form
10-K/A filed on April 6, 1998, and to all references to our Firm included in
this Registration Statement.
/s/ Arthur Andersen LLP
September 16, 1998,
Orlando, Florida
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of Sunterra Corporation (formerly Signature Resorts, Inc.) filed on
or about September 16, 1998 of our report dated May 31, 1996, except for Note
12, as to which the date is July 1, 1996, with respect to the consolidated
financial statements of AVCOM International, Inc. as of December 31, 1995 and
for the year then ended, which report is included in the Annual Report (Form
10-K) of Sunterra Corporation for the year ended December 31, 1997.
Phoenix, Arizona
September 16, 1998
<PAGE> 1
EXHIBIT 23.4
16 September 1998
Dear Sirs
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Sunterra Corporation filed on or about 16 September 1998 of our
report dated 27 March 1997, with respect to the consolidated financial
statements of LSI Group Holdings Plc at 31 December 1995 and 1996 and for each
of the years in the three-year period ended 31 December 1996, which report
appears in the form 10-K of Sunterra Corporation for the fiscal year ended 31
December 1997, filed on 30 March 1998, as amended by the form 10-K/A of Sunterra
Corporation filed on 6 April 1998.
Yours faithfully
/s/ KPMG
KPMG
