As filed with the Securities and Exchange Commission on June 18, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
FAC REALTY, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 56-1819372
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
11000 REGENCY PARKWAY 27511
SUITE 300 (Zip Code)
CARY, NORTH CAROLINA
(Address of Principal Executive Offices)
FACTORY STORES OF AMERICA, INC.
AMENDED AND RESTATED FACTORY STORES OF AMERICA, INC.
1993 EMPLOYEE STOCK INCENTIVE PLAN 1996 RESTRICTED STOCK PLAN
(Full Title of the Plan) (Full Title of the Plan)
FAC REALTY, INC.
1997 QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
C. CAMMACK MORTON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
FAC REALTY, INC.
11000 REGENCY PARKWAY
SUITE 300
CARY, NORTH CAROLINA 27511
(Name and Address of Agent for Service)
(919) 462-8787
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
MICHAELA M. TWOMEY, ESQ. STEPHANIE TSACOUMIS, ESQ.
FAC Realty, Inc. Gibson, Dunn & Crutcher LLP
11000 Regency Parkway 1050 Connecticut Avenue, NW, Suite 900
Suite 300 Washington, DC 20036
Cary, North Carolina 27511 (202) 955-8500
(919) 462-8787
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share. . . . . . . . 444,500 (2) $5.625 $2,500,312.50 $757.67
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Common Stock, par value $.01
per share. . . . . . . . 102,506 (3) 6.625 679,102.25 205.79
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Common Stock, par value $.01
per share. . . . . . . . 227,994 (4) 6.3125 (5) 1,439,212.13(5) 436.12(6)
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TOTAL 775,000 $4,618,626.88 $1,399.58
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</TABLE>
(1) Pursuant to Rule 416(a), also covers additional securities that may be
offered as a result of stock splits, stock dividends or similar
transactions.
(2) This subtotal represents the sum of shares that have not previously been
registered that are issuable upon exercise of presently outstanding
options under the Factory Stores of America, Inc. Amended and Restated
1993 Employee Stock Incentive Plan (the "Incentive Plan").
(3) This subtotal represents the sum of shares that have not previously been
registered that are reserved for issuance under the Factory Stores of
America, Inc. 1996 Restricted Stock Plan, as amended (the "Restricted
Stock Plan").
(4) This subtotal represents the sum of shares that have not previously been
registered that are issuable upon exercise of options that have not yet
been granted under the Incentive Plan, the shares that have not previously
been registered that are reserved for issuance under the Restricted Stock
Plan and the shares that have not previously been registered that are
reserved for issuance under the FAC Realty, Inc. 1997 Qualified Employee
Stock Purchase Plan.
(5) Estimated solely for the purpose of determining the registration fee.
(6) Calculated pursuant to Rules 457(c) and 457(h) based upon the average of
the high and low prices of the Common Stock on the New York Stock Exchange
on June 16, 1997, which was $6.3125.
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EXPLANATORY NOTE
This Registration Statement (this "Registration Statement") is
being filed by FAC Realty, Inc., a Delaware corporation (the "Registrant"), in
order to register additional shares of common stock, par value $0.01 per share
(the "Common Stock"), for which a registration statement on this form relating
to the Factory Stores of America, Inc. Amended and Restated 1993 Employee Stock
Incentive Plan (the "Incentive Plan") and the Factory Stores of America, Inc.
1996 Restricted Stock Plan, as amended (the "Restricted Stock Plan"), is
effective.
On April 3, 1996, the Registrant filed a registration
statement on Form S-8 (File No. 333-03240) (the "Prior Registration Statement")
to register 525,000 and 350,000 shares of Common Stock, which were issuable
under the Factory Stores of America, Inc. 1993 Employee Stock Incentive Plan and
the Factory Stores of America, Inc. 1996 Restricted Stock Plan, respectively.
The Registrant is filing this separate Registration Statement to register an
additional 575,000 and an additional 150,000 shares of Common Stock, which may
be issued under the Incentive Plan and the Restricted Stock Plan, respectively.
In addition, this Registration Statement is being filed by the
Registrant to register 50,000 shares of the Common Stock, which may be issued
under the FAC Realty, Inc. 1997 Qualified Employee Stock Purchase Plan.
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to
Note to Part 1 of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to
Note to Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed
with the Securities and Exchange Commission (the "Commission") are hereby
incorporated in this Registration Statement by reference:
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(1) The Registrant's latest annual report or latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the "Securities Act"), that contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been
filed;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since
the end of the fiscal year covered by Registrant's latest annual report
or prospectus referred to in (1) above;
(3) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Securities
Exchange Act of 1934, as amended ("the Exchange Act"), dated May 19,
1993.
All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a) and (c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all such
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 reports and documents.
Any statement contained herein or 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 earlier statement. Any 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 applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware authorizes the Registrant to indemnify the officers and directors of
the Company, under certain circumstances and subject to certain conditions and
limitations as stated therein, against all expenses and liabilities incurred by
or imposed upon them as a result of actions, suits and proceedings, civil or
criminal, brought against them as such officers and directors if they acted in
good faith and in a manner they reasonably believed to be in or not opposed to
the best interests of the Registrant and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful.
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Reference is hereby made to Article VII of Registrant's
Amended and Restated Bylaws (the "Bylaws"), a copy of which is filed as Exhibit
3.4 to the Company's Annual Report on Form 10-K (File No. 1-11998), which
provides for indemnification of officers and directors of the Registrant to the
full extent authorized by Section 145 of the General Corporation Law of the
State of Delaware. Section 9 of Article VII of the Bylaws authorizes the
Registrant to purchase and maintain insurance on behalf of any officer,
director, employee, trustee or agent of the Registrant against any liability
asserted against or incurred by them in such capacity or arising out of their
status as such whether or not the Registrant would have the power to indemnify
such officer, director, employee, trustee or agent against such liability under
the provisions of such Article or Delaware law.
The Registrant maintains a directors and officers insurance
policy which insures the officers and directors of the Registrant from any claim
arising out of an alleged wrongful act by such persons in their respective
capacities as officers and directors of the Registrant.
Section 102(b)(7) of the General Corporation Law of the State
of Delaware permits corporations to eliminate or limit the personal liability of
a director to the corporation or its stockholders for monetary damages for
breach of a fiduciary duty of care as a director. Reference is made to Article
NINTH of the Registrant's Second Restated Certificate of Incorporation, a copy
of which is filed as Exhibit 3.1 to the Company's Registration Statement on Form
S-11 (Reg. No. 33-71558) which limits a director's liability in accordance with
such Section.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by
reference to another filing of the Registrant with the Securities and Exchange
Commission, each of the following exhibits are filed as part of this
Registration Statement:
5.1 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP (independent auditors).
24.1 Power of Attorney (contained on signature page hereto).
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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 Cary, State of North Carolina, on this th day of
June, 1997.
FAC REALTY, INC.
By: /s/ C. Cammack Morton
C. Cammack Morton
President and Chief Executive Officer
Each person whose signature appears below constitutes and appoints C.
Cammack Morton and Patrick M. Miniutti, and each of them, his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, severally, 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 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 requisite and necessary 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 has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ C. Cammack Morton President and Chief Executive Officer June 18, 1997
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C. Cammack Morton (Principal Executive Officer)
/s/ Patrick M. Miniutti Executive Vice President, and Chief June 18, 1997
- ---------------------------------- Financial Officer (Principal
Patrick M. Miniutti Financial and Accounting Officer)
/s/ Robert O. Amick Director June 18, 1997
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Robert O. Amick
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/s/ William D. Eberle Director June 18, 1997
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William D. Eberle
/s/ J. Richard Futrell, Jr. Director June 18, 1997
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J. Richard Futrell, Jr.
/s/ John W. Gildea Director June 18, 1997
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John W. Gildea
/s/ Theodore E. Haigler, Jr. Director June 18, 1997
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Theodore E. Haigler, Jr.
</TABLE>
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EXHIBIT INDEX
Exhibit Description Sequentially
Number Numbered Page
5.1 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP
(included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP (independent auditors).
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June 18, 1997
FAC Realty, Inc.
11000 Regency Parkway
Third Floor, East Tower
Cary, North Carolina 27511
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We refer to an aggregate of 775,000 shares of Common Stock, par value
$.01 per share, of FAC Realty, Inc., a Delaware corporation (the "Company"),
which are the subject of a registration statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"). The
575,000, 150,000 and 50,000 shares of Common Stock (the "Shares") subject to the
Registration Statement are to be issued under the Factory Stores of America,
Inc. Amended and Restated 1993 Employee Stock Incentive Plan (the "Incentive
Plan"), the Factory Stores of America, Inc. 1996 Restricted Stock Plan, as
amended (the "Restricted Stock Plan"), and the FAC Realty, Inc. 1997 Qualified
Employee Stock Purchase Plan (together with the Incentive Plan and the
Restricted Stock Plan, the "Plans"), respectively.
We have examined the original, or a photostatic or certified copy, of
such records of the Company, certificates of officers of the Company and of
public officials and such other documents as we have determined relevant and
necessary as the basis for the opinion set forth below. In such examination, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon our examination mentioned above, we are of the opinion that
the Shares have been validly authorized for issuance and, when issued and sold
in accordance with the terms set forth in the Registration Statement and the
Plans, and, when (a) the Registration Statement has
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FAC Realty, Inc.
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June 18, 1997
Page 2
become effective under the Act, (b) the pertinent provisions of any
applicable state securities law have been complied with, and (c) in the case of
options issued under the Plans, the Shares have been paid for, the Shares so
issued will be legally issued and will be fully paid and nonassessable.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm appearing on the cover
of the Registration Statement. In giving this consent, we do not admit that we
are within the category of persons whose consent is required under Section 7 of
the Act or the General Rules and Regulations of the Commission.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP
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CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this
registration statement on Form S-8 pertaining to the Factory Stores of America,
Inc. Amended and Restated 1993 Employee Stock Incentive Plan, the Factory Stores
of America, Inc. 1996 Restricted Stock Plan, as amended, and the FAC Realty,
Inc. 1997 Qualified Employee Stock Purchase Plan of our report dated January 31,
1997, except for Notes 10 and 12 as to which the date is March 27, 1997, with
respect to the consolidated financial statements of FAC Realty, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1996, and the related financial statement schedule included
therein, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Raleigh, North Carolina
June 17, 1997
