As filed with the Securities and Exchange Commission on April 26, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
Resorts International, Inc.
(Exact name of registrant as specified in its charter)
Delaware 59-0763055
(State or other jurisdiction of (IRS Employer Identification
incorporation or organization) Number)
1133 Boardwalk, Atlantic City, New Jersey 08401
(Address of Principal Executive Offices including Zip Code)
Resorts International, Inc. 1994 Stock Option Plan and
Resorts International, Inc. Senior Management Stock Option Plan
(Full title of plans)
Matthew B. Kearney
Executive Vice President - Finance
Resorts International, Inc.
1133 Boardwalk
Atlantic City, NJ 08401
(609) 344-6000
(Name, address and telephone number of agent for service)
Copies to:
Arthur H. Bill, Esq.
Freedman, Levy, Kroll & Simonds
1050 Connecticut Avenue, N.W. (Suite 825)
Washington, D.C. 20036
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Maximum
Securities to be Proposed Maximum Aggregate Amount of
to be registered Offering Price Offering Price Registration
Registered (1) Per Share (2) (2) Fee
- --------------------------------------------------------------------------
Common Stock, 3,753,806 $2.96875 $11,114,111 $3,842.80
$.01 par value shares
(1) Plus an indeterminate number of shares of Common Stock that may be issuable
by reason of stock splits, stock dividends or similar transactions in accordance
with Rule 416 under the Securities Act of 1933.
(2) The amounts are based upon the average of the high and low sale prices for
the Common Stock as reported on the American Stock Exchange on April 19, 1995
and are used solely for the purpose of calculating the registration fee pursuant
to paragraphs (c) and (h)(1) of Rule 457 under the Securities Act of 1933.
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PART I
INFORMATION REQUIRED IN PROSPECTUS
The information called for in Part I of Form S-8 is not being filed
with or included in this Form S-8 (by incorporation by reference or otherwise)
in accordance with the rules and regulations of the Securities and Exchange
Commission (the "SEC").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by Resorts International,
Inc. (the "Company") (SEC File No. 1-4748) with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934
(the "Exchange Act") are incorporated in this Registration Statement by
reference and deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the year
ended December 31, 1994.
2. The description of the Company's Common Stock, par value $.01 per
share (the "Common Stock"), contained in the Company's Registration Statement on
Form S-1 in File No. 33-53371, as filed on April 29, 1994 under the Securities
Act of 1933 (the "Securities Act").
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of 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 hereby have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated in this Registration Statement by reference and to be a part
hereof from the date of filing of such documents; provided, however,
that the documents enumerated above or subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act in each year during which the offering made by this Registration
Statement is in effect prior to the filing with the SEC of the Company's
Annual Report on Form 10-K covering such year shall not be deemed
incorporated by reference in this Registration Statement and shall not be a
part hereof from and after the filing of such Annual Report on Form 10-K.
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 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.
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The Company hereby undertakes to provide without charge to each person
who has received a copy of the prospectus to which this Registration Statement
relates, upon the written or oral request of any such person, a copy of any or
all the documents that have been or may be incorporated by reference into this
Registration Statement, other than exhibits to such documents (unless such
exhibits are incorporated therein by reference).
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 ("Section 145") of the Delaware General Corporation Law
("DGCL") provides a Delaware corporation with broad powers to indemnify
its officers and directors in certain circumstances. Additionally, Section
102(a)(7) of the DGCL permits Delaware corporations to include a provision in
their certificates of incorporation eliminating or limiting the personal
liability of a director to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director, provided that such
provisions shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its shareholders,
(ii) for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (iii) for unlawful payment of
dividends or other unlawful distributions or (iv) for any transactions from
which the director derived an improper personal benefit.
As permitted under the DGCL, Article V of the Company's Amended and
Restated Certificate of Incorporation provides that:
A. Elimination of Certain Liability of Directors. A
director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director
derived an improper personal benefit. If the Delaware General
Corporation Law is amended after the Effective Date (as defined in
Article IX hereof) to authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be eliminated
or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended. Any repeal or modification of this
Section by the stockholders of the Corporation shall be prospective
only and shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such
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repeal or modification.
B. Actions, Suits or Proceedings Other than by or in the Right
of the Corporation. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or
in the right of the Corporation) by reason of the fact that he is or
was or has agreed to become a director or officer of the Corporation,
or is or was serving or has agreed to serve at the request of the
Corporation as a director or officer of another corporation, partner
ship, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against
costs, charges, expenses (including attorneys fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him
or on his behalf in connection with such action, suit or proceeding and
any appeal therefrom, 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. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of
the Corporation.
C. Actions or Suits by or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was or has
agreed to become a director or officer of the Corporation, or is or was
serving or has agreed to serve at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity, against costs, charges and
expenses (including attorneys' fees) actually and reasonably incurred
by him or on his behalf in connection with the defense or settlement of
such action or suit and any appeal therefrom, 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 except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such costs, charges
and expenses which the Court of Chancery or such other court shall deem
proper.
D. Indemnification for Costs, Charges and Expenses of
Successful Party. Notwithstanding the other provisions of this
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Article V, to the extent that a director or officer of the Corporation
has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in defense of
any action, suit or proceeding referred to in Sections A and B of this
Article V, or in defense of any claim, issue or matter therein, he
shall be indemnified against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on his
behalf in connection therewith.
E. Determination of Right to Indemnification. Any indemni
fication under Sections A and B of this Article V (unless ordered by a
court) shall be paid by the Corporation unless a determination is made
(i) by a majority of the members of the Board of Directors who were not
parties to such action, suit or proceeding even if less than a quorum,
or (ii) if such a majority of the disinterested members of the Board of
Directors so direct, by independent legal counsel in a written
opinion, or (iii) by the stockholders, that indemnification of the
director or officer is not proper in the circumstances because he has
not met the applicable standard of conduct set forth in Sections A and
B of this Article V.
F. Advance of Costs, Charges and Expenses. Costs, charges and
expenses (including attorneys' fees) incurred by a person referred to
in Sections A and B of this Article V in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such
action, suit or proceeding; provided, however, that the payment of such
costs, charges and expenses (including attorneys' fees) incurred by a
director or officer in advance of the final disposition of such action,
suit or proceeding shall be made only upon receipt of an undertaking by
or on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined that such
director or officer is not entitled to be indemnified by the
Corporation as authorized in this Article V. Such costs, charges and
expenses (including attorneys' fees) incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the
majority of the Board of Directors deems appropriate. The majority of
the Board of Directors may, in the manner set forth above, and upon
approval of such director, officer, employer, employee or agent of the
Corporation, authorize the Corporation's counsel to represent such
person, in any action, suit or proceeding, whether or not the
Corporation is a party to such action, suit or proceeding.
G. Procedure for Indemnification. Any indemnification under
Sections B, C and D, or advance of costs, charges and expenses
(including attorneys' fees) under Section F of this Article V, shall be
made promptly, and in any event within 60 days, upon the written
request of the director or officer. The right to indemnification or
advances as granted by this Article V shall be enforceable by the
director or officer in any court of competent jurisdiction, if the
Corporation denies such request, in whole or in part, or if no
disposition
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thereof is made within 60 days. Such person's costs and expenses
(including attorneys' fees) incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any
such action shall also be indemnified by the Corporation. It shall
be a defense to any such action that the claimant has not met the
standard of conduct set forth in Sections B or C of this Article V,
but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel and its stockholders)
to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the
circumstances because he has met the applicable standard of conduct
set forth in Sections B or C of this Article V, nor the fact that
there has been an actual determination by the Corporation
(including its Board of Directors, its independent legal counsel and
its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard of
conduct.
H. Other Rights; Continuation of Right to Indemnification. The
indemnification provided by this Article V shall not be deemed
exclusive of any other rights to which any director, officer, employee
or agent seeking indemnification may be entitled under any law (common
or statutory), agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and
as to action in another capacity while holding office or while employed
by or acting as agent for the Corporation, and shall continue as to a
person who has ceased to be a director, officer, employee or agent, and
shall inure to the benefit of the estate, heirs, executors and
administrators of such person. All rights to indemnification under this
Article V shall be deemed to be a contract between the Corporation and
each director, officer, employee or agent of the Corporation who serves
or served in such capacity at any time while this Article V is in
effect. Any repeal or modification of this Article V or any repeal or
modification of relevant provisions of the General Corporation Law of
the State of Delaware or any other applicable laws shall not in any way
diminish any rights to indemnification of such director, officer,
employee or agent or the obligations of the Corporation arising
hereunder. This Article V shall be binding upon any successor
corporation to this Corporation, whether by way of acquisition, merger,
consolidation or otherwise.
I. Insurance. The Corporation shall purchase and
maintain insurance on behalf of any person who is or was or
has agreed to become a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him or
incurred by him or on his behalf in any such capacity, or
arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such
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liability under the provisions of this Article V, provided, however,
that such insurance is available on reasonable and acceptable terms,
which determination shall be made by a vote of a majority of the Board
of Directors.
J. Savings Clause. If this Article V or any portion
hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation (i) shall
nevertheless indemnify each director and officer of the
Corporation, and (ii) may nevertheless indemnify each employee
and agent of the Corporation, as to costs, charges and
expenses (including attorneys' fees), judgments, fine and
amounts paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the
Corporation, to the full extent permitted by any applicable
portion of this Article V that shall not have been invalidated
and to the full extent permitted by applicable law.
K. Subsequent Amendment. No amendment, modification or
repeal of this Article V shall affect or impair in any way the
rights of any director or officer of the Corporation to
indemnification under the provisions hereof with respect to
any action, suit or proceeding arising out of, or relating to,
any actions, transactions or facts occurring prior to the
final adoption of such amendment, termination or appeal.
L. Subsequent Legislation. If the General Corporation
Law of the State of Delaware is amended to further expand the
indemnification permitted to directors, officers, employees or
agents of the Corporation, then the Corporation shall indemnify
such persons to the fullest extent permitted by the General
Corporation Law of the State of Delaware, as so amended.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number Description
4(a) Resorts International, Inc. Senior Management Stock
Option Plan. (Incorporated herein by reference to
Exhibit 8.5 to Exhibit 35 to the Company's Form 8
Amendment No. 1 to the Form 8-K Current Report dated
August 30, 1990; File No. 1-4748.)
4(b) Resorts International, Inc. 1994 Stock Option Plan.
(Incorporated herein by reference to Exhibit C to the
Plan of Reorganization set forth as Appendix A to the
Information Statement/Prospectus included in the Com-
pany's Registration Statement on Form S-4 in File
No. 33-50733.)
4(c) Amended and Restated Certificate of Incorporation
of the
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Company. (Incorporated herein by reference to
Exhibit 3.01 to the Company's Registration
Statement on Form S-1 in File No. 33-53371.)
4(d) Amended and By-Laws of the Company, as amended.
(Incorporated herein by reference to Exhibit 3.02
to the Company's Registration Statement on Form
S-1 in File No. 33-53371.)
5 Legal opinion, dated April 26, 1995, of Freedman,
Levy, Kroll & Simonds, counsel to the Company,
as to the legality of shares offered.
23(a) Consent of Ernst & Young.
23(b) Consent of Freedman, Levy, Kroll & Simonds.
(Included in Exhibit 5 hereto.)
24 Power of Attorney. (Included on signature page of
this Registration Statement.)
Item 9. Undertakings.
1. The Company hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registra-
tion 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;
(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 the Registration Statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic
reports filed by the Company pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the
Registration Statement.
(b) That, for the purpose 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.
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(c) 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.
2. The Company hereby undertakes that, for the purpose 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.
3. 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 informed that in the
opinion of the SEC 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
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,
the Registrant certifies that it has reasonable grounds to believe that
it meets all 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 Atlantic City,
State of New Jersey on this 25th day of April, 1995.
RESORTS INTERNATIONAL, INC.
By: MATTHEW B. KEARNEY
Matthew B. Kearney
Executive Vice President-Finance
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints THOMAS E. GALLAGHER
and MATTHEW B. KEARNEY his true and lawful attorneys-in-fact and
agents, each acting alone, with full powers of substitution, for
him and in his name, place and stead, in any and all capacities,
to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with
exhibits thereto, and other documents in connection therewith, with the
SEC, granting unto said attorneys-in-fact and agents, each acting
alone, full power and authority to do and perform 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, each acting
alone, 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 or amendment thereto has been signed below
by the following persons in the capacities and on the dates indicated:
Signature Title Date
MERV GRIFFIN Chairman of the Board April 20, 1995
Merv Griffin and Director
WILLIAM J. FALLON Director April 25, 1995
William J. Fallon
THOMAS E. GALLAGHER President and Director April 20, 1995
Thomas E. Gallagher (Principal Executive
Officer)
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JAY M. GREEN Director April 21, 1995
Jay M. Green
Director
Charles Masson
Director
Vincent J. Naimoli
MATTHEW B. KEARNEY Executive Vice President- April 25, 1995
Matthew B. Kearney Finance (Principal
Financial Officer)
DAVID G. BOWDEN Vice President-Controller April 25, 1995
David G. Bowden (Principal Accounting
Officer)
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EXHIBIT INDEX
Exhibit
Number Description
4(a) Resorts International, Inc. Senior Management Stock
Option Plan. (Incorporated herein by reference to
Exhibit 8.5 to Exhibit 35 to the Company's Form 8
Amendment No. 1 to the Form 8-K Current Report
dated August 30, 1990; File No. 1-4748.)
4(b) Resorts International, Inc. 1994 Stock Option Plan.
(Incorporated herein by reference to Exhibit C to
the Plan of Reorganization set forth as Appendix A
to the Information Statement/Prospectus included in
the Company's Registration Statement on Form S-4 in
File No. 33-50733.)
4(c) Amended and Restated Certificate of Incorporation
of the Company. (Incorporated herein by reference
to Exhibit 3.01 to the Company's Registration
Statement on Form S-1 in File No. 33-53371.)
4(d) Amended and By-Laws of the Company, as amended.
(Incorporated herein by reference to Exhibit 3.02
to the Company's Registration Statement on Form S-1
in File No. 33-53371.)
5 Legal opinion, dated April 26, 1995, of Freedman, Levy,
Kroll & Simonds, counsel to the Company, as to the legality
of shares offered.
23(a) Consent of Ernst & Young LLP.
23(b) Consent of Freedman, Levy, Kroll & Simonds.
(Included in Exhibit 5 hereto.)
24 Power of Attorney. (Included on signature page of
this Registration Statement.)
K:\331002\ahb\form-s.8
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EXHIBIT 5
April 26, 1995
Resorts International, Inc.
1133 Boardwalk
Atlantic City, New Jersey 08401
Re: Registration Statement on Form S-8
Gentlemen:
We have represented Resorts International, Inc. (the "Company") in
connection with its Registration Statement on Form S-8 being filed today
with the Securities and Exchange Commission (together with all exhibits thereto,
the "Registration Statement"). The Registration Statement relates to an offering
by the Company of up to 3,753,806 shares of the Company's common stock, par
value $.01 per share, (the "Shares") upon the exercise of options under the
Company's Senior Management Stock Option Plan and 1994 Stock Option Plan (the
"Plans").
We have examined (1) the Amended and Restated Certificate of
Incorporation of the Company, (2) the By-Laws of the Company, (3) the
Registration Statement, (4) the Plans and (5) such other corporate records,
certificates, documents and other instruments as in our opinion are necessary or
appropriate in connection with expressing the opinions set forth below.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and existing
under the laws of the State of Delaware.
2. When the following events shall have occurred:
(a) the Registration Statement is filed, at which time it will
become effective under the Securities Act of 1933, pursuant to
General Instruction D to Form S-8, and
(b) the Shares shall have been paid for and issued in
accordance with the terms of the Plans,
the Shares thus sold will be legally issued, fully paid and
non-assessable.
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This firm hereby consents to the filing of this
opinion as Exhibit 5 to the Registration Statement.
Sincerely,
FREEDMAN, LEVY, KROLL & SIMONDS
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EXHIBIT 23(a)
CONSENT
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8 No. 33-__________ ) pertaining to the shares
of common stock of Resorts International, Inc. and to the incorporation by
reference therein to our report dated February 17, 1995, except for Note 2,
as to which the date is February 27, 1995, with respect to the consolidated
financial statements and schedules of Resorts International, Inc. incorporated
by reference in its Form 10-K for the year ended December 31, 1994, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
April 26, 1995
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