Bluegreen Corporation
As filed with the Securities and Exchange Commission on May 23, 2008
Registration No. 333-______________
UNITED STATES
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)
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Massachusetts
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03-0300793 |
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.) |
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4960 Conference Way North
Suite 100
Boca Raton, Florida
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33431 |
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(Address of Principal Executive Offices)
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(Zip Code) |
Bluegreen Corporation 2008 Stock Incentive Plan
(Full title of the plan)
Anthony M. Puleo
Bluegreen Corporation
4960 Conference Way North
Suite 100
Boca Raton, Florida 33431
(Name and address of agent for service)
(561) 912-8270
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer o
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Accelerated filer x
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed |
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maximum |
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Proposed |
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Title of |
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Amount to be |
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offering price |
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maximum aggregate |
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Amount of |
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securities to be registered |
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registered(1) |
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per share(2) |
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offering price(2) |
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registration fee(2) |
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Common stock, par value $0.01 per share(3)
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4,000,000 |
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$ |
7.02 |
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28,080,000 |
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$ |
1,104 |
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(1) |
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Pursuant to Rule 416 of the Securities Act of 1933, this registration statement shall also
cover any additional shares of common stock which may become issuable under the Bluegreen
Corporation 2008 Stock Incentive Plan by reason of any stock dividend, stock split,
recapitalization or any other similar transaction. |
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(2) |
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Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c) and
(h) of the Securities Act of 1933 on the basis of the average of the high and low prices of the
common stock on the New York Stock Exchange on May 20, 2008. |
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(3) |
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Each share of common stock registered under this registration statement includes an associated
right to purchase from the registrant one one-hundredth of a share of Series A Junior Participating
Preferred Stock for $40.00. These purchase rights are not exercisable until the occurrence of
certain prescribed events, none of which has occurred, and these purchase rights are evidenced by
the certificates representing the common stock and may be transferred only with the common stock.
The value attributable to these purchase rights, if any, is reflected in the value of the common stock. |
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Bluegreen Corporation (the Company) with the Securities and
Exchange Commission (the Commission) are incorporated herein by reference:
(1) |
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The Companys Annual Report on Form 10-K for the year ended December 31, 2007, filed with the
Commission on March 3, 2008. |
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(2) |
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The Companys Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2008,
filed with the Commission on May 9, 2008. |
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(3) |
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The Companys Current Report on Form 8-K, filed with the Commission on January 7, 2008. |
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(4) |
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The Companys Current Report on Form 8-K, filed with the Commission on February 19, 2008. |
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(5) |
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The Companys Current Report on Form 8-K, filed with the Commission on April 4, 2008. |
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(6) |
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The Companys Current Report on Form 8-K, filed with the Commission on April 23, 2008. |
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(7) |
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The portions of the Companys Definitive Proxy Statement on Schedule 14A, filed with the
Commission on April 9, 2008, that are deemed filed with the Commission under the Securities
Exchange Act of 1934, as amended (the Exchange Act). |
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(8) |
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The description of the Companys common stock, par value $0.01 per share, contained in the
Companys Registration Statement on Form 8-A, filed with the Commission on December 27, 1985,
from the Companys Registration Statement on Form S-1 (Commission File No. 33-13076). |
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(9) |
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The description of the Companys preferred share purchase rights contained in the Companys
Registration Statement on Form 8-A, filed with the Commission on August 2, 2006, and
Amendments Nos. 1, 2 and 3 thereto, filed with the Commission on October 18, 2006, May 24,
2007 and October 16, 2007, respectively. |
All documents subsequently 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 have been sold or which
deregisters all securities then remaining unsold shall be deemed to be incorporated by reference
into this registration statement and to be a part hereof from the date of filing of such documents.
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 other subsequently filed document which also
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.
II-2
Item 4. Description of Securities.
Not required.
Item 5. Interests of Named Experts and Counsel.
Not required.
Item 6. Indemnification of Directors and Officers.
As permitted by Chapter 156B of the Massachusetts General Laws (Chapter 156B), the Companys
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 or her fiduciary duty of care as a director. Liability is not eliminated for (i) any breach
of the directors 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 stockholders 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 Companys 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 or her 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 or she may be
or may have been involved as a party or otherwise or with which he or she may be or may have been
threatened, while in office or thereafter, by reason of his or her being or having been such a
director or officer or by reason of any action taken or not taken in such capacity, except with
respect to any matter as to which he or she shall have been finally adjudicated by a court of
competent jurisdiction not to have acted in good faith in the reasonable belief that his or her
action was in the best interests of the Company. Such indemnification is not exclusive of other
indemnification rights arising under any by-law provision, agreement, board of directors or
stockholders vote or otherwise.
Section 67 of Chapter 156B 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 persons 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. Section 67 of Chapter 156B further provides, however, that a corporation
may purchase indemnification insurance covering liabilities of,
among other persons, the corporations officers and directors, whether or not the corporation,
under Massachusetts law, would have the power to indemnify the insureds against such liabilities.
The Company currently maintains such insurance.
II-3
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith:
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Exhibit |
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Description |
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4.1
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Specimen of Common Stock Certificate (incorporated herein by reference to
Exhibit 4.17 of the Companys Annual Report on Form 10-K, filed with the
Commission on March 3, 2008) |
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4.2
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Rights Agreement, dated as of July 27, 2006, by and between Bluegreen Corporation and Mellon
Shareholder Services LLC, as Rights Agent (incorporated herein by reference to Exhibit 4.1 of
the Companys Current Report on Form 8-K, filed with the Commission on August 2, 2006) |
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4.3
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Amendment to Rights Agreement, dated as of October 16, 2006, by and between Bluegreen
Corporation and Mellon Shareholder Services LLC, as Rights Agent (incorporated herein by
reference to Exhibit 99.2 of the Companys Current Report on Form 8-K, filed with the
Commission on October 18, 2006) |
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4.4
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Second Amendment to Rights Agreement, dated as of May 21, 2007, by and between Bluegreen
Corporation and Mellon Shareholder Services LLC, as Rights Agent (incorporated herein by
reference to Exhibit 99.4 of the Companys Current Report on Form 8-K, filed with the
Commission on May 24, 2007) |
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4.5
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Third Amendment to Rights Agreement, dated as of October 15, 2007, by and between Bluegreen
Corporation and Mellon Shareholder Services LLC, as Rights Agent (incorporated herein by
reference to Exhibit 99.6 of the Companys Current Report on Form 8-K, filed with the
Commission on October 16, 2007) |
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4.6
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Stipulation and Order, dated as of October 16, 2006, by and between Bluegreen Corporation and
its directors and David A. Siegel, David A. Siegel Revocable Trust and Central Florida
Investments, Inc. (incorporated herein by reference to Exhibit 99.1 of the Companys Current
Report on Form 8-K, filed with the Commission on October 18, 2006) |
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4.7
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Amendment to Stipulation and Order, dated as of May 21, 2007, by and between Bluegreen
Corporation and its directors and David A. Siegel, David A. Siegel Revocable Trust and Central
Florida Investments, Inc. (incorporated herein by reference to Exhibit 99.2 of the Companys
Current Report on Form 8-K, filed with the Commission on May 24, 2007) |
II-4
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Exhibit |
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Description |
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4.8
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Second Amendment to Stipulation and Order, dated as of October 15, 2007, by and between
Bluegreen Corporation and its directors and David A. Siegel, David A. Siegel Revocable Trust
and Central Florida Investments, Inc. (incorporated herein by reference to Exhibit 99.3 of the
Companys Current Report on Form 8-K, filed with the Commission on October 16, 2007) |
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5.1
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Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. |
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23.1
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Consent of Ernst & Young LLP |
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23.2
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Consent of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. (included in Exhibit 5.1) |
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24.1
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Power of Attorney (set forth on the signature page to this registration statement) |
Item 9. Undertakings
(a) 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 propectus 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; and
(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)(1)(i) and (a)(1)(ii) of this section do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained
in 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 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 undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrants 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 plans annual report pursuant to Section 15(d) of the
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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.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the undersigned registrant pursuant to
the foregoing provisions, or otherwise, the undersigned registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 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 undersigned 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 undersigned 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 Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-6
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 Boca Raton, State of Florida on May 23, 2008.
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BLUEGREEN CORPORATION
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By: |
/s/ John M. Maloney, Jr.
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John M. Maloney, Jr., |
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President and Chief Executive Officer |
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints John M. Maloney, Jr. and Anthony M. Puleo, and each of them acting alone, his true and
lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, 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 Commission granting unto
said attorneys-in-fact and agents, and each of them acting alone, full power and authority to do
and perform each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and confirming all that
each of said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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.
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SIGNATURE |
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TITLE |
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DATE |
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/s/ John M. Maloney, Jr.
John M. Maloney, Jr. |
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President and Chief Executive Officer
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May 23, 2008 |
/s/ Anthony M. Puleo
Anthony M. Puleo |
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Senior Vice President, Chief
Financial Officer and
Treasurer
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May 23, 2008 |
/s/ Raymond S. Lopez
Raymond S. Lopez |
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Senior Vice President and
Chief Accounting Officer
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May 23, 2008 |
/s/ Alan B. Levan
Alan B. Levan |
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Chairman of the Board
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May 23, 2008 |
/s/ John E. Abdo
John E. Abdo |
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Vice Chairman of the Board
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May 23, 2008 |
/s/ Norman H. Becker
Norman H. Becker |
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Director
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May 23, 2008 |
/s/ Lawrence A. Cirillo
Lawrence A. Cirillo |
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Director
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May 23, 2008 |
II-7
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SIGNATURE |
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TITLE |
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DATE |
/s/ Robert F. Dwors
Robert F. Dwors |
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Director
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May 23, 2008 |
/s/ Scott W. Holloway
Scott W. Holloway |
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Director
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May 23, 2008 |
/s/ John Laguardia
John Laguardia |
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Director
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May 23, 2008 |
/s/ Mark A. Nerenhausen
Mark A. Nerenhausen |
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Director
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May 23, 2008 |
/s/ J. Larry Rutherford
J. Larry Rutherford |
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Director
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May 23, 2008 |
/s/ Arnold Sevell
Arnold Sevell |
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Director
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May 23, 2008 |
II-8
EXHIBIT INDEX
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Exhibit |
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Number |
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Description |
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5.1
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Opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. |
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23.1
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Consent of Ernst & Young LLP |