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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 27, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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.)
1781 PARK CENTER DRIVE 94402
ORLANDO, FLORIDA 32835 (Zip Code)
(Address of principal executive offices)
---------------
THE 1998 NEW-HIRE STOCK OPTION PLAN OF SUNTERRA CORPORATION
---------------
THOMAS A. BELL
SENIOR VICE PRESIDENT AND
GENERAL COUNSEL
SUNTERRA CORPORATION
1781 PARK CENTER DRIVE
ORLANDO, FLORIDA 32835
(407) 532-1000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
MICHAEL W. STURROCK, ESQ.
LATHAM & WATKINS
633 WEST FIFTH STREET, SUITE 4000
LOS ANGELES, CALIFORNIA 90071
(213) 485-1234
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CALCULATION OF REGISTRATION FEE
==================================================================================================================
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
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value............... 250,000 $13.75 $3,437,500 $956
==================================================================================================================
</TABLE>
(1) The 1998 New-Hire Stock Option Plan of Sunterra Corporation (the "Plan")
authorizes the issuance of a maximum of 250,000 shares of common stock of
Sunterra Corporation, plus substitutions or adjustments to shares to
account for any change in corporate capitalization, such as a stock split,
any merger, consolidation, recapitalization or other distribution of stock
or property.
(2) For purposes of computing the registration fee only, pursuant to Rule
457(c), the proposed Maximum Offering Price Per Share 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 July 22, 1999.
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PART I
Item 1. Plan Information
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information
Not required to be filed with this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Sunterra Corporation, a Maryland
corporation (the "Company"), are incorporated by reference in this Registration
Statement on Form S-8 (the "Registration Statement"):
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
(c) The Company's Current Report on Form 8-K filed with the
Commission on May 11, 1999; and
(d) 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.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, are
incorporated by reference in this Registration Statement and are a part hereof
from the date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities
Not required to be filed with this Registration Statement.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers
Maryland law presently permits the liability of directors and
officers to a corporation or its stockholders for money damages to be limited,
except (i) to the extent that it is proved that the director or officer actually
received an improper benefit or profit, or (ii) if a judgment or other final
adjudication is entered in a proceeding based on a finding that the director's
or officer's action, or failure to act, was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding. This provision does not limit the ability of the Company or its
stockholders to obtain other relief, such as an injunction or rescission.
2
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The Company's Charter and Bylaws require the Company to indemnify
its directors, officers and certain other parties to the fullest extent
permitted from time to time by Maryland law.
The Maryland General Corporation Law presently permits a corporation
to indemnify its directors, officers and certain other parties against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by them in connection with any proceeding to which they may be made a
party by reason of their service to the corporation unless it is established
that (i) the act or omission of the indemnified party was material to the matter
giving rise to the proceeding, and (1) was committed in bad faith or (2) was the
result of active and deliberate dishonesty; or (ii) the indemnified party
actually received an improper personal benefit in money, property or services;
or (iii) in the case of any criminal proceeding, the indemnified party had
reasonable cause to believe that the act or omission was unlawful.
Indemnification may be made against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by the director or officer in connection
with the proceeding; provided, however, that if the proceeding is one by or in
the right of the corporation, indemnification may not be made with respect to
any proceeding in which the director or officer has been adjudged to be liable
to the corporation. In addition, a director or officer may not be indemnified
with respect to any proceeding charging improper personal benefit to the
director or officer in which the director or officer was adjudged to be liable
on the basis that personal benefit was improperly received. The termination of
any proceeding by conviction, or upon a plea of nolo contendere or its
equivalent, or an entry of any order of probation prior to judgment creates a
rebuttable presumption that the director or officer did not meet the requisite
standard of conduct required for indemnification to be permitted.
The Company has obtained a directors and officers liability
insurance policy with total coverage in the aggregate amount of $25 million.
The directors and officers liability policy insures (i) directors and officers
of the Company from any claim arising out of an alleged wrongful act by such
persons while acting as directors and officers of the Company, (ii) the Company
to the extent that it has indemnified the directors and officers for such loss,
and (iii) the Company for losses incurred in connection with claims made against
the Company for covered wrongful acts.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following is a list of exhibits filed as part of this
Registration Statement, which are incorporated herein:
4.1 Indenture dated as of January 15, 1997 by and between
Sunterra Corporation 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 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 Amendment No. 1 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 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))
3
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4.4 Indenture dated as of May 1, 1998 by and between Sunterra
Finance L.L.C., as issuer of the bonds, Sunterra
Corporation as Servicer and LaSalle National Bank, as
Trustee and Back-up Servicer for Signature Resorts
Vacation Ownership Receivables-Backed Notes 1998-A
(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 1998 New-Hire Stock Option Plan of Sunterra Corporation
(incorporated by reference to Exhibit 10.19 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998)
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of KPMG
*23.3 Consent of Ballard Spahr Andrews & Ingersoll (included as
part of Exhibit 5.1)
*24 Power of Attorney (included on the signature page of this
Registration Statement)
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*Filed herewith
Item 9. Undertakings
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 of 1933, as amended (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 the
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 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 the Registration
Statement or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) shall
not apply if this Registration Statement is on Form S-3, Form S-8 or Form F-3
and the information to be included in a post-effective amendment to those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act, that are incorporated by reference in this Registration Statement.
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(2) That, for purposes of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Orlando, State of Florida, on this 19th day of
July, 1999.
SUNTERRA CORPORATION
By: /s/ Thomas A. Bell
-------------------------------------
Thomas A. Bell
Senior Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Thomas A. Bell and Richard Goodman, 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/ ANDREW J. GESSOW Co-Chairman of the Board July 19, 1999
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Andrew J. Gessow
/s/ STEVEN C. KENNINGER Co-Chairman of the Board July 19, 1999
- -----------------------------------------
Steven C. Kenninger
/s/ L. STEVEN MILLER Director, President and Chief July 19, 1999
- ----------------------------------------- Executive Officer (Principal
L. Steven Miller Executive Officer)
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<TABLE>
<S> <C> <C>
/s/ JAMES E. NOYES Executive Vice President -- Sales July 19, 1999
- ----------------------------------------- and Director
James E. Noyes
/s/ OSAMU KANEKO Director July 19, 1999
- -----------------------------------------
Osamu Kaneko
/s/ ADAM M. ARON Director July 19, 1999
- -----------------------------------------
Adam M. Aron
/s/ SANFORD R. CLIMAN Director July 19, 1999
- -----------------------------------------
Sanford R. Climan
/s/ J. TAYLOR CRANDALL Director July 19, 1999
- -----------------------------------------
J. Taylor Crandall
/s/ JOSHUA S. FRIEDMAN Director July 19, 1999
- -----------------------------------------
Joshua S. Friedman
/s/ W. LEO KIELY III Director July 19, 1999
- -----------------------------------------
W. Leo Kiely III
</TABLE>
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INDEX TO EXHIBITS
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EXHIBIT PAGE
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4.1 Indenture dated as of January 15, 1997 by and between Sunterra
Corporation 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 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 Amendment No. 1 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 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., as issuer of the bonds, Sunterra Corporation
as Servicer and LaSalle National Bank, as Trustee and Back-up
Servicer for Signature Resorts Vacation Ownership
Receivables-Backed Notes 1998-A (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 1998 New-Hire Stock Option Plan of Sunterra Corporation
(incorporated by reference to Exhibit 10.19 to the Company's
Annual Report on Form 10-K for the fiscal year ended December
31, 1998)
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of KPMG
*23.3 Consent of Ballard Spahr Andrews & Ingersoll (included as part
of Exhibit 5.1)
*24 Power of Attorney (included on the signature page of this
Registration Statement)
</TABLE>
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*Filed herewith
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EXHIBIT 5.1
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]
July 26, 1999
Sunterra Corporation
1781 Park Center Drive
Orlando, Florida 32835
Re: Sunterra Corporation, a Maryland corporation (the "Company") -
Registration Statement on Form S-8 (Registration No. 333-______)
pertaining to Two Hundred Fifty Thousand (250,000) Shares (the
"Shares") of common stock, par value one cent per share ("Common
Stock") pursuant to the 1998 New-Hire Stock Option Plan of
Sunterra Corporation (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, to be filed with the Securities
and Exchange Commission (the "Commission") on or about July 26, 1999 (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 charter of the Company (the "Charter"), consisting of Articles of
Incorporation filed with the SDAT on May 28, 1996, Articles of Amendment filed
with the SDAT on June 13, 1996, Articles of Amendment filed with the SDAT on
August 20, 1996, Articles of Amendment filed with the SDAT on July 14, 1998 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
<PAGE> 2
BALLARD SPAHR ANDREWS & INGERSOLL, LLP
Sunterra Corporation
July 26, 1999
Page 2
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. We also consent to the
identification of our firm as Maryland counsel to the Company in the section of
the Prospectus (which is part of the Registration Statement) entitled "Legal
Matters".
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 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
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EXHIBIT 23.1
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 on or around July 26, 1999, under the Securities Act of
1933 to register 250,000 shares of $0.01 par value Common Stock in connection
with the 1998 New-Hire Stock Option Plan, of our report dated February 10, 1999,
included in Sunterra Corporation's Form 10-K for the year ended December 31,
1998, and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
July 26, 1999
Orlando, Florida
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
23 July 1999
Dear Sirs
We consent to the incorporation by reference in the registration statements S-8
to be filed on or about 23 July 1999 of Sunterra Corporation (formerly Signature
Resorts Inc) of our report dated March 27, 1997, with respect to the
consolidated financial statements of LSI Group Holdings Plc (now Sunterra Europe
(Ground Holdings) plc) at December 31, 1996, which report appears in the
December 31, 1998 annual report on form 10-K of Sunterra Corporation.
Yours faithfully
/s/ KPMG
KPMG
Chartered Accountants
