<PAGE> 1
As filed with the Securities and Exchange Commission on September 29, 1998.
Registration No. 333-______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BLUEGREEN CORPORATION
(Exact name of registrant as specified in its charter)
03-0300793
(I.R.S. employer identification no.)
MASSACHUSETTS
(State or other jurisdiction of incorporation or organization)
4960 BLUE LAKE DRIVE, BOCA RATON, FLORIDA 33431
(Address of principal executive offices) (Zip Code)
Bluegreen Corporation 1995 Stock Incentive Plan
Bluegreen Corporation 1998 Non-Employee Director Stock Option Plan
Bluegreen Corporation Retirement Savings Plan
- --------------------------------------------------------------------------------
(Full title of the plan)
George F. Donovan, President and Chief Executive Officer
Bluegreen Corporation
4960 Blue Lake Drive
Boca Raton, Florida 33431
(Name and address of agent for service)
(561) 912-8000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================== ====================== =================== ====================== ===========================
PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) REGISTRATION FEE
---------------- -------------- ------------- --------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $.01 3,000,000 shares $7 7/8 $23,625,000 $6,970
par value
Participation Interests (3) (4)
========================== ====================== =================== ====================== ===========================
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to
the plan in the event of a stock dividend, split-up of shares,
recapitalization or other similar change in the Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee,
in accordance with Rule 457(h)(1), on the basis of the average of the
high and low prices of the Common Stock as reported on the New York
Stock Exchange on September 28, 1998.
(3) In addition, pursuant to Rule 416(c), this registration statement also
covers an indeterminate amount of interests to be offered or sold
pursuant to the Retirement Savings Plan described herein.
(4) The securities of the Registrant to be purchased by the Bluegreen
Corporation Retirement Savings Plan are included in the amount shown
for Common Stock. Accordingly, pursuant to Rule 457(h)(2), no separate
fee is required for the participation interests.
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EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8, as amended, and relates to 3,000,000 shares of Common
Stock, $.01 par value, of Bluegreen Corporation (the "Company") that have been
reserved for issuance under the Company's 1995 Stock Incentive Plan, as amended,
the 1998 Non-Employee Director Stock Option Plan and the Retirement Savings Plan
(sometimes collectively referred to herein as the "Plans"). In addition,
pursuant to Rule 416(c), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
Company's Retirement Savings Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
Form S-8 will be sent or given to participants in the Plans as specified by Rule
428(b)(1) promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act").
Such documents are not being filed with the Commission but constitute
(along with the documents incorporated by reference into this Registration
Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Company's 1998 Annual Report to Stockholders filed with the
Commission on June 26, 1998, containing the Company's audited financial
statements for its fiscal year ended March 29, 1998;
(b) Quarterly Report on Form 10-Q for the fiscal quarter ended June 28,
1998, filed with the Commission on August 12, 1998;
(c) Current Report on Form 8-K filed with the Commission on July 23,
1998;
(d) Current Report on Form 8-K filed with the Commission on August 31,
1998; and
(e) The description of the Company's Common Stock incorporated by
reference into the Company's registration statement on Form 8-A filed with the
Commission on December 27, 1985 from the Company's registration statement on
Form S-1 (SEC File No. 33-13076).
In addition, all documents filed by the Company after the initial
filing date of this Registration Statement pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and prior to the filing of a post-effective amendment which indicates
that all shares registered hereunder have been sold or which de-registers all
shares 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 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
As permitted by Chapter 156B of the Massachusetts General Laws
("Chapter 156B"), the Company's Restated Articles of Organization, as amended
(the "Charter"), contain a provision which limits the personal liability of a
director to the Company or its stockholders for monetary damages for breach of
his fiduciary duty of care as a director. Under current law, liability is not
eliminated for (i) any breach of the director's duty of loyalty to the Company
or its stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) unlawful payment of
dividends or stock purchases or redemptions pursuant to Section 61 and Section
62 of Chapter 156B, or (iv) any transaction from which the director derived an
improper personal benefit. This provision does not eliminate a stockholder's
right to seek nonmonetary remedies, such as an injunction, rescission, or other
equitable remedy, to redress action taken by the directors. However, there may
be instances in which no effective equitable remedy is available.
The Company's Charter provides, in part, that the Company shall
indemnify any person who is or was a director or officer of the Company and each
person who is or was serving as a director or officer of another organization in
which the Company directly or indirectly owns shares or of which the Company is
directly or indirectly a creditor, against all liabilities, cost and expenses,
including but not limited to amounts paid in satisfaction of judgments, in
settlement or as fines and penalties and counsel fees and disbursements
reasonably incurred by him in connection with the defense or disposition of or
otherwise in connection with or resulting from any action, suit or other
proceeding, whether civil, criminal, administrative or investigative, before any
court or administrative or legislative or investigative body, in which he may be
or may have been involved as a party or otherwise or with which he may be or
have been threatened, while in office or thereafter, by reason of his being or
having been such a director or officer or by reason of any action taken
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or not taken in such capacity, except with respect to any matter as to which he
shall have been finally adjudicated by a court of competent jurisdiction not to
have acted in good faith in the reasonable belief that his action was in the
best interests of the corporation. Such indemnification is not exclusive of
other indemnification rights arising under any by-laws, agreement, board of
directors or stockholders' vote or otherwise.
Currently applicable Massachusetts law provides that officers and
directors may receive indemnification from their corporations for actual or
threatened lawsuits, except that indemnification may not be provided for any
person with respect to any matter to which such person has been adjudicated not
to have acted in good faith in the reasonable belief that such person's action
was in the best interest of the corporation or, to the extent that such matter
relates to service with respect to any employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan.
Massachusetts law further provides that a corporation may purchase
indemnification insurance, such insurance providing indemnification for the
officers and directors whether or not the corporation would have the power to
indemnify them against such liability under the provisions of the Massachusetts
law. The Company currently maintains such insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Specimen stock certificate (incorporated by reference to the exhibit
of same designation to Registration Statement on Form S-1, File No.
33-13076).
5.1 Opinion of Choate, Hall & Stewart as to the legality of the shares
being registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
24.1 Power of Attorney (included in page II-5).
99.1 Bluegreen Corporation 1995 Stock Incentive Plan, as amended
(incorporated by reference to exhibit 10.79 to Annual Report on Form
10-K for the fiscal year ended March 29, 1998).
99.2 Bluegreen Corporation 1998 Non-Employee Director Stock Option Plan
(incorporated by reference to exhibit 10.131 to Annual Report on
Form 10-K for the fiscal year ended March 29, 1998).
99.3 Bluegreen Corporation Retirement Savings Plan (incorporated by
reference to Registration Statement on Form S-8, dated May 15, 1992
(File No. 33-48075)).
------------------
ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) that, for the purpose of determining any liability under
the Securities Act of 1933, as amended (the "Securities Act"), each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company will, unless in the opinion of 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, 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 Boca Raton, the State of Florida on September 29,
1998.
Bluegreen Corporation
(Registrant)
By: /s/ George F. Donovan
-------------------------------------
George F. Donovan,
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints George F. Donovan, John F. Chiste and
Patrick E. Rondeau, jointly and severally, his true and lawful attorneys-in-fact
and agents with full powers of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and all 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 requisite and necessary to be 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 thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on September 29, 1998 by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
NAME CAPACITY
- ---- --------
<S> <C>
/s/ GEORGE F. DONOVAN President, Chief Executive Officer and Director
- ----------------------------------- (Principal Executive Officer)
George F. Donovan
/s/ JOHN F. CHISTE Vice President and Chief Financial Officer
- ----------------------------------- (Principal Financial Officer)
John F. Chiste
/s/ ANTHONY M. PULEO Chief Accounting Officer
- ----------------------------------- (Principal Accounting Officer)
Anthony M. Puleo
/s/ JOSEPH C. ABELES Director
- -----------------------------------
Joseph C. Abeles
/s/ RALPH A. FOOTE Director
- -----------------------------------
Ralph A. Foote
/s/ FREDERICK M. MYER Director
- -----------------------------------
Frederick M. Myer
/s/ J. LARRY RUTHERFORD Director
- -----------------------------------
J. Larry Rutherford
/s/ STUART SHIKIAR Director
- -----------------------------------
Stuart Shikiar
/s/ BRADFORD T. WHITMORE Director
- -----------------------------------
Bradford T. Whitmore
/s/ MICHAEL J. FRANCO Director
- -----------------------------------
Michael J. Franco
/s/ JOHN A. HENRY Director
- -----------------------------------
John A. Henry
</TABLE>
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INDEX TO EXHIBITS
EXHIBIT NUMBER
- --------------
4.1 Specimen stock certificate (incorporated by reference to the exhibit of
same designation to Registration Statement on Form S-1, File No.
33-13076).
5.1 Opinion of Choate, Hall & Stewart as to the legality of the shares
being registered.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
24.1 Power of Attorney (included in page II-5).
99.1 Bluegreen Corporation 1995 Stock Incentive Plan, as amended
(incorporated by reference to exhibit 10.79 to Annual Report on Form
10-K for the fiscal year ended March 29, 1998).
99.2 Bluegreen Corporation 1998 Non-Employee Director Stock Option Plan
(incorporated by reference to exhibit 10.131 to Annual Report on Form
10-K for the fiscal year ended March 29, 1998).
99.3 Bluegreen Corporation Retirement Savings Plan (incorporated by
reference to Registration Statement on Form S-8, dated May 15, 1992
(File No. 33-48075)).
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EXHIBIT 5.1
CHOATE, HALL & STEWART
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
EXCHANGE PLACE
53 STATE STREET
BOSTON, MASSACHUSETTS 02109
TELEPHONE (617) 248-5000
FAX (617) 248-4000
TELEX 49615860
September 29, 1998
Bluegreen Corporation
4960 Blue Lake Drive
Boca Raton, FL 33431
Gentlemen:
This opinion is delivered to you in connection with the registration
statement on Form S-8 (the "Registration Statement") to be filed on September
29, 1998 by Bluegreen Corporation (the "Company") under the Securities Act of
1933, as amended, for registration under said Act of 3,000,000 shares of common
stock, $.01 par value (the "Common Stock"), of the Company.
We are familiar with the Company's Restated Articles of Organization,
its By-Laws, as amended, and its corporate minute book, as well as the
Registration Statement. We have also examined such other documents, records and
certificates and made such further investigation as we have deemed necessary for
the purposes of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock to be issued by the Company under its 1995 Stock
Incentive Plan, 1998 Non-Employee Director Stock Option Plan and Bluegreen
Corporation Retirement Savings Plan, as in effect on the date hereof, when
issued against receipt of the agreed purchase price therefor, will be legally
issued, fully paid and nonassessable.
We understand that this opinion is to be used in connection with the
Registration Statement and consent to the filing of this opinion as an exhibit
to the Registration Statement and to all references to this Firm included
therein.
Very truly yours,
CHOATE, HALL & STEWART
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Bluegreen Corporation 1995 Stock Incentive Plan, as
amended, the Bluegreen Corporation 1998 Non-Employee Director Stock Option Plan
and the Bluegreen Corporation Retirement Savings Plan of our report dated May 6,
1998, with respect to the consolidated financial statements of Bluegreen
Corporation for its fiscal year ended March 29, 1998 included in the 1998 Annual
Report to Stockholders filed with the Securities and Exchange Commission on June
26, 1998.
KPMG Peat Marwick LLP
West Palm Beach, Florida
September 23, 1998
