SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
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FAIRFIELD COMMUNITIES, INC.
(Exact name of issuer as specified in its charter)
--------------------------------
Delaware 71-0390438
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification Number)
2800 Cantrell Road
Little Rock, Arkansas 72202
(501) 664-6000
(Address of Principal Executive Offices)
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FAIRFIELD COMMUNITIES, INC.
FIRST AMENDED AND RESTATED 1992 WARRANT PLAN
(full title of the plan)
Marcel J. Dumeny Copies of Communications to:
Senior Vice President, Les R. Baledge
General Counsel and Secretary Rose Law Firm
2800 Cantrell Road A Professional Association
Little Rock, Arkansas 72202 120 East Fourth Street
(501) 664-6000 Little Rock, Arkansas 72201
(Name, address, including zip code, (501) 375-9131
and telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- ---------- ---------- --------- -------------- ------------
Common 1,000,000 $5.94 (1) $5,940,000 (1) $2,048.28
Stock (par Shares
value $.01)
(1) Calculated pursuant to Rule 457(c) based upon the average of the high
and low price per share of Fairfield Communities, Inc.'s Common Stock on
September 29, 1994.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by Fairfield Communities, Inc.
("Registrant" or "Company") with the Securities and Exchange Commission are
incorporated by reference in this registration statement:
(1) Registrant's Annual Report on Form 10-K for the year ended
December 31, 1993 (the "Form 10-K") filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934 (the "Exchange Act"), as amended on April
28, 1994 on Form 10-K/A (No. 1) and amended and restated on August 11, 1994
on Form 10-K/A (No.2).
(2) Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1994, as amended on August 11, 1994 on Form 10-Q/A.
(3) Registrant's Current Report on Form 8-K for the event
occurring on April 6, 1994.
(4) Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1994.
(5) Registrant's Current Report on Form 8-K for the event
occurring on September 23, 1994.
(6) The description of Registrant's Common Stock contained in
Registrant's Registration Statement on Form 8-A, dated September 30, 1992.
In addition, all documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
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, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of
such documents.
Item 6. Indemnification of Directors and Officers
The Company's Certificate of Incorporation (the "Certificate") provides
that each person serving as a director, officer, employee or agent of the
Company (including the heirs, executors, administrators, or estate of such
person), or any such person serving at the request of the Board or an
officer as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other legal entity, shall be
indemnified by the Company to the fullest extent permitted by the General
Corporation Law of the State of Delaware (the "DGCL"). The Certificate also
provides that the Company may adopt Bylaw provisions or enter into separate
agreements with any person to provide for indemnification greater or
different than that provided by the Certificate.
The Company's By-laws provide that the Company shall indemnify and hold
harmless its directors and officers to the fullest extent legally
permissible under and pursuant to any procedure specified in the DGCL
against all expenses, liabilities, and losses (including attorneys' fees,
judgments, fines, and amounts paid or to be paid in settlement) incurred in
connection with their service or status as directors and officers. Such
indemnification would also extend to liabilities arising from actions taken
by directors or officers when serving at the request of the Company as a
director, officer, or employee of another corporation, or as its
representative in a partnership, joint venture or other enterprise.
Section 145 of the DGCL, as currently in effect, sets forth the
indemnification rights of directors and officers of Delaware corporations.
Under such provision, a director or officer of a corporation (i) shall be
indemnified by the corporation for all expenses of litigation or other legal
proceedings when he is successful on the merits or otherwise, (ii) may be
indemnified by the corporation for the expenses, judgments, fines and
amounts paid in settlement of such litigation (other than a derivative suit)
even if he is not successful on the merits if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the corporation (and, in the case of a criminal proceeding, had
no reason to believe his conduct was unlawful), and (iii) may be indemnified
by the corporation for expenses of a derivative suit (a suit by a
stockholder alleging a breach by a director or officer of a duty owed to the
corporation), even if he is not successful on the merits, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, provided that no such indemnification
may be made in accordance with this clause (iii) if the director or officer
is adjudged liable to the corporation, unless a court determines that,
despite such adjudication but in view of all of the circumstances, he is
fairly and reasonably entitled to indemnification of such expenses. The
indemnification described in clauses (ii) and (iii) above shall be made only
upon a determination by (i) a majority of a quorum of disinterested
directors, (ii) independent legal counsel in a written opinion or (iii) the
stockholders, that indemnification is proper because the applicable standard
of conduct is met.
The effect of the indemnification provisions contained in the Company's
Certificate and By-laws is to require the Company to indemnify its directors
and officers under circumstances where such indemnification would otherwise
be discretionary and to extend to the Company's directors and officers the
benefits of Delaware law dealing with director and officer indemnification,
as well as any future changes which might occur under Delaware law in this
area.
The Company's Certificate and By-laws specify that the indemnification
rights granted thereunder are not exclusive of any other indemnification
rights that the director or officer may have. As permitted by Section
145(g) of the DGCL, the Company's By-laws also authorize the Company to
purchase directors' and officers' insurance for the benefit of its past and
present directors and officers, irrespective of whether the Company has the
power to indemnify such persons under Delaware law. The Company currently
maintains such insurance as allowed by these provisions.
The Company's By-laws also provide that expenses incurred by a director
or officer in defending a civil or criminal lawsuit or proceeding arising
out of actions taken in his official capacity, or in certain other
capacities, will be paid by the Company in advance of the final disposition
of the matter upon receipt of an undertaking from the director or officer to
repay the sum advanced if it is ultimately determined that he is not
entitled to be indemnified by the Company pursuant to applicable provisions
of the DGCL.
As noted above, the Company's directors and officers have certain
indemnity rights under the Company's Certificate and By-laws and the DGCL
and are protected from certain other liabilities by the Company's existing
directors' and officers' insurance. The Company has also entered into
supplemental indemnification agreements with its directors and with certain
officers (collectively the "Indemnitees"). The indemnification agreements
provide the Indemnitees with indemnification rights coextensive with those
rights provided under the DGCL. The agreements formalize the procedures for
effecting indemnification from the Company, clarify the rights of the
Indemnitees in the event of any merger or other combination involving the
Company in which the Company is not the resulting or surviving entity, and
provide further assurances to the Indemnitees that the Company will take no
action to diminish or encumber their indemnification rights.
Additionally, the indemnification agreements provide, subject to the
applicable provisions of the DGCL, indemnification rights to each Indemnitee
against any amount which he is or becomes legally obligated to pay relating
to and arising out of any act or omission or neglect or breach of duty which
he commits, suffers, permits or acquiesces in while acting in his capacity
as an officer or director of the Company or, at the request of the Company,
as a director, officer, employee or agent of another corporation. No
indemnification, however, is provided in such case if a final court
adjudication shall determine that such indemnification is not lawful, or in
respect of any claim against an indemnity to the extent based upon or
attributable to the Indemnitee gaining a personal profit to which he was not
entitled, including profits made from a purchase or sale of securities of
the Company in violation of Section 16(b) of the Exchange Act or on account
of any profits arising from publicly traded securities of the Company in
violation of Section 10(b) of the Exchange Act, including Rule 10b-5
promulgated thereunder.
Item 8. Exhibits
See Index to Exhibits on page 6.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made of the securities registered hereby, 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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; and
(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;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i)
and (a)(1)(ii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all 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 Little Rock, State of Arkansas, on
the 6th day of October, 1994.
FAIRFIELD COMMUNITIES, INC.
(Registrant)
By: /s/ J. W. McConnell
J. W. McConnell,
Director, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Russell A. Belinsky* Director October 6, 1994
Russell A. Belinsky
/s/ Ernest D. Bennett, III* Director October 6, 1994
Ernest D. Bennett, III
/s/ Daryl J. Butcher* Director October 6, 1994
Daryl J. Butcher
/s/ Philip L. Herrington* Director October 6, 1994
Philip L. Herrington
/s/ William C. Scott Director October 6, 1994
William C. Scott*
/s/ J. Steven Wilson* Director October 6, 1994
J. Steven Wilson
/s/ J. W. McConnell Director, President and October 6, 1994
J. W. McConnell Chief Executive Officer
/s/ R. W. Howeth Senior Vice President, October 6, 1994
R. W. Howeth Chief Financial Officer
and Treasurer
/s/ William G. Sell Vice President/Controller October 6, 1994
William G. Sell (Chief Accounting Officer)
*By: /s/ J. W. McConnell
J. W. McConnell
Attorney-in-Fact
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------- -----------------------
(4) Fairfield Communities, Inc. First Amended and Restated
1992 Warrant Plan, previously filed as Exhibit 10.7 to
Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1993
(5) Opinion of Rose Law Firm, a Professional Association
(23a) Consent of Ernst & Young LLP, independent auditors
(23b) Consent of Rose Law Firm, a Professional Association
(included as part of Exhibit 5)
(24) Powers of Attorney
Exhibit 5
ROSE LAW FIRM
a Professional Association
120 East Fourth Street
Little Rock, Arkansas 72201
(501) 377-0322
October 6, 1994
Fairfield Communities, Inc.
2800 Cantrell Road
Little Rock, Arkansas 72202
Re: Fairfield Communities, Inc. Form S-8 Registration Statement -
Fairfield Communities, Inc. First Amended and Restated 1992 Warrant Plan
Ladies and Gentlemen:
We have acted as counsel for Fairfield Communities, Inc. (the
"Company") in connection with the Registration under the Securities Act of
1933, as amended, of 1,000,000 shares of the Company's Common Stock, $.01
par value, to be issued from time to time pursuant to the Company's First
Amended and Restated 1992 Warrant Plan.
It is our opinion that the Common Stock has been duly and validly
authorized by the Company and, when issued, and when the certificates
representing the shares are duly executed and delivered to holders, will be
validly and legally issued, fully paid and non-assessable shares of the
Company's Common Stock.
We hereby consent to the use of this opinion as an exhibit to the
referenced Registration Statement.
Very truly yours,
ROSE LAW FIRM, a
Professional Association
By: /s/ Les R. Baledge
Les R. Baledge
Exhibit 23(a)
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Fairfield Communities, Inc. First Amended and
Restated 1992 Warrant Plan of our report dated July 29, 1994, with respect
to the consolidated financial statements and schedules of Fairfield
Communities, Inc. included in its Annual Report as amended and restated
(Form 10-K/A (No. 2)) for the year ended December 31, 1993, filed with the
Securities and Exchange Commission.
Ernst & Young LLP
Little Rock, Arkansas
October 3, 1994
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John W. McConnell and/or Marcel J. Dumeny, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-8, and any or all
amendments thereto (including post-effective amendments) to be filed by
Fairfield Communities, Inc. with respect to the registration and issuance of
up to 1,000,000 shares of Common Stock, $.01 par value, pursuant to the
Fairfield Communities, Inc. First Amended and Restated 1992 Warrant Plan,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers 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 for all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorney
in fact and agent or his substitute(s), may lawfully do or cause to be done
by virtue hereof.
/s/ Russell A. Belinsky Director September 20, 1994
Russell A. Belinsky
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John W. McConnell and/or Marcel J. Dumeny, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-8, and any or all
amendments thereto (including post-effective amendments) to be filed by
Fairfield Communities, Inc. with respect to the registration and issuance of
up to 1,000,000 shares of Common Stock, $.01 par value, pursuant to the
Fairfield Communities, Inc. First Amended and Restated 1992 Warrant Plan,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers 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 for all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorney
in fact and agent or his substitute(s), may lawfully do or cause to be done
by virtue hereof.
/s/ Ernest D. Bennett, III Director September 20, 1994
Ernest D. Bennett, III
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John W. McConnell and/or Marcel J. Dumeny, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-8, and any or all
amendments thereto (including post-effective amendments) to be filed by
Fairfield Communities, Inc. with respect to the registration and issuance of
up to 1,000,000 shares of Common Stock, $.01 par value, pursuant to the
Fairfield Communities, Inc. First Amended and Restated 1992 Warrant Plan,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers 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 for all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorney
in fact and agent or his substitute(s), may lawfully do or cause to be done
by virtue hereof.
/s/ Daryl J. Butcher Director September 20, 1994
Daryl J. Butcher
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John W. McConnell and/or Marcel J. Dumeny, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-8, and any or all
amendments thereto (including post-effective amendments) to be filed by
Fairfield Communities, Inc. with respect to the registration and issuance of
up to 1,000,000 shares of Common Stock, $.01 par value, pursuant to the
Fairfield Communities, Inc. First Amended and Restated 1992 Warrant Plan,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers 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 for all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorney
in fact and agent or his substitute(s), may lawfully do or cause to be done
by virtue hereof.
/s/ Philip L. Herrington Director September 20, 1994
Philip L. Herrington
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John W. McConnell and/or Marcel J. Dumeny, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-8, and any or all
amendments thereto (including post-effective amendments) to be filed by
Fairfield Communities, Inc. with respect to the registration and issuance of
up to 1,000,000 shares of Common Stock, $.01 par value, pursuant to the
Fairfield Communities, Inc. First Amended and Restated 1992 Warrant Plan,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers 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 for all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorney
in fact and agent or his substitute(s), may lawfully do or cause to be done
by virtue hereof.
/s/ William C. Scott Director September 20, 1994
William C. Scott
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned constitutes and
appoints John W. McConnell and/or Marcel J. Dumeny, severally, his true and
lawful attorney in fact and agent with full powers of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities to sign a registration statement on Form S-8, and any or all
amendments thereto (including post-effective amendments) to be filed by
Fairfield Communities, Inc. with respect to the registration and issuance of
up to 1,000,000 shares of Common Stock, $.01 par value, pursuant to the
Fairfield Communities, Inc. First Amended and Restated 1992 Warrant Plan,
and to file same with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney in fact and agent, full powers 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 for all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorney
in fact and agent or his substitute(s), may lawfully do or cause to be done
by virtue hereof.
/s/ J. Steven Wilson Director September 20, 1994
J. Steven Wilson
