As Filed with the Securities and Exchange Commission on March 11, 1998
Registration No. 333-3240
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SECURITIES AND EXCHANGE COMMISSION
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WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FAC REALTY TRUST, INC.
(Exact name of registrant as specified in charter)
MARYLAND 56-1819372
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
11000 REGENCY PARKWAY
SUITE 300
CARY, NORTH CAROLINA 27511
(919) 462-8787
(Address, including zip code, of principal executive offices)
FAC REALTY TRUST, INC.
1993 EMPLOYEE STOCK INCENTIVE PLAN
(Full title of the plan)
FAC REALTY TRUST, INC.
1995 OUTSIDE DIRECTORS' STOCK AWARD PLAN
(Full title of the plan)
FAC REALTY TRUST, INC.
1996 RESTRICTED STOCK PLAN
(Full title of the plan)
C. CAMMACK MORTON, PRESIDENT AND CHIEF EXECUTIVE OFFICER
FAC REALTY TRUST, INC.
11000 REGENCY PARKWAY
SUITE 300
CARY, NORTH CAROLINA 27511
(919) 462-8787
(Name, address, including zip code and telephone number,
of agent for service)
COPY TO:
BRAD S. MARKOFF, ESQ.
ALSTON & BIRD LLP
RALEIGH, NORTH CAROLINA 27612
(919) 420-2200
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This Post-Effective Amendment No. 1 to the Form S-8 Registration Statement (File
No. 333-3240) of FAC Realty, Inc., a Delaware corporation formerly named Factory
Stores of America, Inc. (the "Delaware Company"), which Registration Statement
registers securities issued pursuant to the1993 Employee Stock Incentive Plan,
the 1995 Outside Directors' Stock Award Plan and the 1996 Restricted Stock Plan,
is filed pursuant to Rule 414 promulgated under the Securities Act of 1933, as
amended (the "1933 Act"), by FAC Realty Trust, Inc., a Maryland corporation (the
"Maryland Company"). In connection with the Reincorporation Merger (as defined
below), the Maryland Company hereby adopts this Registration Statement as its
own for all purposes of the 1933 Act and the Securities Exchange Act of 1934, as
amended.
DESCRIPTION OF TRANSACTION
Pursuant to an Agreement and Plan of Merger between the Delaware
Company and the Maryland Company dated as of December 15, 1997 (the "Plan of
Merger"), on December 16, 1997 (the "Effective Time"), the Delaware Company
merged with and into the Maryland Company, with the Maryland Company as the
surviving corporation (the "Reincorporation Merger"). As a result of the
Reincorporation Merger, each share of the Delaware Company's common stock, par
value $0.01 per share, issued and outstanding immediately prior to the Effective
Time was converted into one validly issued, fully paid and nonassessable share
of common stock, par value $0.01 per share, of the Maryland Company.
The Reincorporation Merger and related transactions are described in
the proxy statement of the Delaware Company dated November 7, 1997 and were
approved by the Delaware Company's shareholders at a special meeting on December
16, 1997.
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ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Delaware Company with the
Securities and Exchange Commission (the "Commission") pursuant to the Exchange
Act are incorporated herein by reference and made a part hereof:
A. The Delaware Company's annual report on Form 10-K for the year ended
December 31, 1996 (as amended on Form 10-K/A on April 16, 1997);
B. The Delaware Company's quarterly reports on Form 10-Q for the periods
ended March 31, June 30, and September 30, 1997;
C. The Delaware Company's current reports on Form 8-K, dated June 27,
1996, February 19, 1997, April 11, 1997 (as amended on May 19, 1997)
and September 10, 1997; and
D. The description of the Delaware Company's Common Stock included in the
Delaware Company's Registration Statement on Form 8-A, 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 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's officers and directors are, and will be, indemnified
against certain liabilities in accordance with the Maryland General Corporation
Law ("Maryland law") and the Articles of Incorporation and bylaws of the
Company. The Articles of Incorporation require the Company to indemnify its
directors and officers to the fullest extent permitted from time to time by
Maryland law. Maryland law permits a corporation to indemnify its directors and
officers, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made a party by reasons of their service in those or other
capacities unless it is established that the act or omission of the director or
officer was material to the matter giving rise to the proceeding and was
committed in bad faith or was the result of active and deliberate dishonesty, or
the director or officer actually received an improper personal benefit in money,
property or services, or in the case of any criminal proceeding, the director or
officer had reasonable cause to believe that the act or omission was unlawful.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1 Articles of Incorporation (incorporated by reference to the Delaware Company's Proxy Statement
dated November 7, 1997)
4.2 Bylaws (incorporated by reference to the Delaware Company's Proxy Statement dated November 7,
1997)
5.1 Opinion of Alston & Bird LLP regarding the legality of the shares of Common Stock being registered
23.1 Consent of Alston & Bird LLP (included in Exhibit 5.1)
23.2* Accountant's Consent
24.1 Power of Attorney (contained on signature page hereto)
</TABLE>
* To be filed by amendment
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ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(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 the registration
statement. Notwithstanding the foregoing, offered would not
exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement;
Provided, however, that the undertakings set forth in paragraphs (i)
and (ii) shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act 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 any
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 offering therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act 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 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.
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SIGNATURES
Pursuant to the requirements of the 1933 Act, 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 Cary, State of North Carolina, on March 11, 1998.
FAC REALTY TRUST, INC.
By: /S/ C. Cammack Morton
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C. Cammack Morton
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of FAC Realty Trust, Inc., hereby severally constitute C. Cammack
Morton and Patrick M. Miniutti and each of them singly, our true and lawful
attorneys with full power to them, es and our capacities as officers and
directors to enable FAC Realty Trust, Inc. to comply with the provisions of the
Securities Act, and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signature as they may be signed by our said
attorneys, or any of them, to said registration statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act, 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 March 11, 1998
- ------------------------- Officer
C. Cammack Morton
/S/ Patrick M. Miniutti Executive Vice President and March 11, 1998
- ---------------------------- Chief Financial Officer
Patrick M. Miniutti
/S/ Robert O. Amick Director March 11, 1998
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Robert O. Amick
/S/ William D. Eberle Director March 11, 1998
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William D. Eberle
/S/ J. Richard Futrell, Jr. Director March 11, 1998
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J. Richard Futrell, Jr.
/S/ John W. Gildea March 11, 1998
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John W. Gildea Director
/S/ Theodore E. Haigler, Jr. March 11, 1998
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Theodore E. Haigler, Jr. Director
</TABLE>
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Exhibit 5.1
ALSTON & BIRD LLP
ATTORNEYS AT LAW
RALEIGH, NORTH CAROLINA
March 11, 1998
FAC Realty Trust, Inc.
11000 Regency Parkway
Suite 300
Cary, North Carolina 27511
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), of up to
900,000 shares (the "Shares") of common stock, par value $.01 per share, of FAC
Realty Trust, Inc., a Maryland corporation (the "Company").
In connection with rendering this opinion, we have examined the
Articles of Incorporation and Bylaws of the Company, each as amended to date;
such records of the corporate proceedings of the Company as we deemed material;
a post-effective amendment to the Form S-8 registration statement (File No.
333-3240) under the Securities Act relating to the Shares, and the prospectus
contained therein (the "Prospectus"); and such other certificates, receipts,
records and documents as we considered necessary for the purposes of this
opinion.
We are attorneys admitted to practice in the State of North Carolina.
We express no opinion concerning the laws of any jurisdiction other than the
laws of the United States of America and the State of North Carolina and the
General Corporate Law of the State of Maryland.
Based upon the foregoing, we are of the opinion that when the Shares
have been validly issued in accordance with the terms of the Prospectus, the
Shares will be legally issued, fully paid and nonassessable shares.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Securities Act and applicable requirements of state
laws regulating the offer and sale of securities.
We also consent to the use of our name under the caption "Legal
Matters" in the Prospectus.
Very truly yours,
ALSTON & BIRD LLP
By: /S/ Robert H. Bergdolt
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Robert H. Bergdolt, Partner
