As filed with the Securities and Exchange Commission on July 24, 2002
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HOMEFED CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 33-0304982
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification No.)
1903 Wright Place
Suite 220
Carlsbad, California 92008
(760) 918-8200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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HOMEFED CORPORATION 1999 STOCK INCENTIVE PLAN
HOMEFED CORPORATION 2000 STOCK INCENTIVE PLAN
(Full Title of Plans)
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Paul J. Borden
President
HomeFed Corporation
1903 Wright Place
Suite 220
Carlsbad, California 92008
(760) 918-8200
(Name and address, including zip code,
and telephone number, including area code, of agent for service)
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Copy to:
Andrea A. Bernstein, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share(4) Price(4)
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Common Stock, par value $0.01 per share 1,000,000 shares (2) $ 0.83448 $ 834,480.00 $ 76.77
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Common Stock, par value $0.01 per share 1,000,000 shares (3) $ 0.61 $ 610,000.00 $ 56.12
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Total 2,000,000 shares $ 1,444,480.00 $ 132.89
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(1) This registration statement also covers an indeterminate number of shares
of common stock that may be issued by reason of stock splits, stock
dividends or similar transactions in accordance with Rule 416 of the
Securities Act of 1933.
(2) Represents common stock issuable under the Registrant's 1999 Stock
Incentive Plan.
(3) Represents common stock issuable under the Registrant's 2000 Stock
Incentive Plan.
(4) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of 1933,
based upon the average of the high and low sales prices of the shares of
common stock as reported on July 18, 2002.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
HomeFed will send or give the documents containing the
information specified in Part I of Form S-8 to employees as specified by Rule
428(b)(1) under the Securities Act of 1933. HomeFed is not required to file
these documents with the Commission either as part of this registration
statement or as reoffer prospectuses or reoffer prospectus supplements under
Rule 424 of the Securities Act. These documents and the documents incorporated
by reference in this registration statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by HomeFed with the SEC (File
No. 1-10153) and any future filings under Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act made prior to the termination of the offering are incorporated
by reference: (i) the Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, as amended on Form 10-K/A dated April 30, 2002, (ii) the
Quarterly Report on Form 10-Q for the period ending March 31, 2002, (iii) the
Proxy Statement on Schedule 14A filed on June 14, 2002 and (iv) the description
of HomeFed's common stock, which is contained in HomeFed's registration
statement no. 333-79901, including any amendment or report filed for the purpose
of updating the description. All documents filed by HomeFed pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment indicating that all securities offered hereby have been
sold or deregistering all securities then remaining unsold, shall be deemed to
be incorporated by reference into this prospectus 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 Directors and Officers.
HomeFed is a Delaware corporation. Subsection (b) (7) of
Section 102 of the Delaware General Corporation Law (the "DGCL") enables a
corporation in its original certificate of incorporation or an amendment thereto
to eliminate or limit the personal liability of a director to the corporation or
its stockholders for monetary damages for violations of the director's fiduciary
duty, except (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)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit. Article 8 of the Restated Certificate of Incorporation of HomeFed (the
"Restated Certificate") provides that, to the fullest extent permitted by the
DGCL, no director of HomeFed shall be personally liable to the corporation or
any of its stockholders for monetary damages for breach of fiduciary duty as a
director.
Article 9 of the Restated Certificate provides for the
indemnification of directors and officers to the extent permitted by the DGCL.
Subsection (a) of Section 145 of the DGCL empowers a corporation to indemnify
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any director or officer, or former director of officer, 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 such person is or was a director or officer 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 expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with such action, suit or proceeding provided that such director of officer
acted in good faith in a manner reasonably believed to be in, or not opposed to,
the best interests of the corporation, and, with respect to any criminal action
or proceeding, provided further that such director or officer has no reasonable
cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to
indemnify any director or officer, or former director or officer, 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 such person acted in any of the
capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
such action or suit provided that such director or officer 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 may be made in
respect of any claim, issue or matter as to which such director of officer shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that despite the adjudication of liability but
in view of all of the circumstances of the case, such director of officer is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 145 further provides that (i) to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; and (ii) indemnification and advancement of expenses
provided for, by, or granted pursuant to, Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled. In
addition, Section 145 empowers the corporation to purchase and maintain
insurance on behalf of any person who is or was a director or officer 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 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 liabilities under Section 145.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
HomeFed pursuant to the foregoing provisions, or otherwise, HomeFed has been
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informed 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
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Number Description
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4.1 Restated Certificate of Incorporation, as restated July 3,
1995 of HomeFed (filed as Exhibit 3.1 to HomeFed's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1995
(the "September 30, 1995 Form 10-Q").*
4.2 By-laws of HomeFed as amended through November 10, 1995 (filed
as Exhibit 3.2 to the September 30, 1995 Form 10-Q).*
4.3 1999 Stock Incentive Plan (filed as Annex A to HomeFed's Proxy
Statement, dated November 22, 1999, for the 1999 Annual
Meeting of Stockholders).*
4.4 2000 Stock Incentive Plan (filed as Annex A to HomeFed's Proxy
Statement, dated June 20, 2000, for the 2000 Annual Meeting of
Stockholders).*
5.1 Opinion of Weil, Gotshal & Manges LLP.**
23.1 Consent of PricewaterhouseCoopers LLP.**
23.2 Consent of Weil, Gotshal & Manges LLP (included in the opinion
filed as Exhibit 5.1 to this registration statement).**
24.1 Power of Attorney (included in the signature pages of this
registration statement).**
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* Incorporated by reference.
** Filed herewith.
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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 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 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 the undertakings in paragraph
(a)(1)(i) and (a)(1)(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 HomeFed
pursuant to Section 13 or Section 15(d) of the
Exchange Act, that are incorporated by reference in
the registration statement.
(2) 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.
(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, each filing of the registrant's
annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act)
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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 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 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 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 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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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Carlsbad, State of California, on this 24th day
of July, 2002.
HOMEFED CORPORATION
By: /s/ Erin N. Ruhe
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Erin N. Ruhe
Vice President and Controller
POWER OF ATTORNEY
We, the undersigned officers and directors of HomeFed
Corporation, hereby severally constitute and appoint Paul J. Borden and Erin N.
Ruhe, and each of them singly, our true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, to sign for us and in our
name in the capacities indicated below, any and all amendments to this
registration statement on Form S-8 filed by HomeFed Corporation with the SEC,
and generally to do all such things in our name and behalf in such capacities to
enable HomeFed Corporation to comply with the provisions of the Securities Act
of 1933, as amended, and all requirements of the SEC, and we hereby ratify and
confirm our signatures as they may be signed by our said attorneys, or any of
them, to any and all such amendments.
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.
Signature Title Date
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/s/ Joseph S. Steinberg Chairman of the Board and Director July 24th, 2002
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Joseph S. Steinberg
/s/ Paul J. Borden President and Director July 24th, 2002
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Paul J. Borden
/s/ Erin N. Ruhe Vice President and Controller July 24th, 2002
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Erin N. Ruhe Officer)
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/s/ Patrick D. Bienvenue Director July 24th, 2002
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Patrick D. Bienvenue
/s/ Timothy Considine Director July 24th, 2002
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Timothy Considine
/s/ Ian M. Cumming Director July 24th, 2002
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Ian M. Cumming
/s/ Michael A. Lobatz Director July 24th, 2002
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Michael A. Lobatz
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Exhibit Index
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Exhibit
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Number Description
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4.1 Restated Certificate of Incorporation, as restated July 3,
1995 of HomeFed (filed as Exhibit 3.1 to HomeFed's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1995
(the "September 30, 1995 Form 10-Q").*
4.2 By-laws of HomeFed as amended through November 10, 1995 (filed
as Exhibit 3.2 to the September 30, 1995 Form 10-Q).*
4.3 1999 Stock Incentive Plan (filed as Annex A to HomeFed's Proxy
Statement, dated November 22, 1999, for the 1999 Annual
Meeting of Stockholders).*
4.4 2000 Stock Incentive Plan (filed as Annex A to HomeFed's Proxy
Statement, dated June 20, 2000, for the 2000 Annual Meeting of
Stockholders).*
5.1 Opinion of Weil, Gotshal & Manges LLP.**
23.1 Consent of PricewaterhouseCoopers LLP.**
23.2 Consent of Weil, Gotshal & Manges LLP (included in the opinion
filed as Exhibit 5.1 to this registration statement).**
24.1 Power of Attorney (included in the signature pages of this
registration statement).**
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* Incorporated by reference.
** Filed herewith.