As filed with the Securities and Exchange Commission on October 14, 1997
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
------------------
Monterey Homes Corporation
- --------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
Maryland 86-0611231
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6613 North Scottsdale Road, Suite 200, Scottsdale, Arizona 85250
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Monterey Homes Corporation Stock Option Plan
- --------------------------------------------------------------------------------
(Full title of the plan)
Larry W. Seay
Vice President and Chief Financial Officer
Monterey Homes Corporation
6613 North Scottsdale Road, Suite 200
Scottsdale, Arizona 85250
- --------------------------------------------------------------------------------
(Name and address of agent for service)
(602) 998-8700
- --------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
With copy to:
Steven D. Pidgeon
Snell & Wilmer L.L.P.
One Arizona Center
Phoenix, Arizona 85004-0001
(602) 382-6000
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be To Be Price Offering Registration
Registered Registered Per Share Price Fee
---------- ---------- ----------- ------- ---
Common Stock 475,000 724.09*
- -------------------------
* Based on 225,000 shares under the Stock Option Plan at $5.62 per share and
250,000 shares under the Hamberlin Stock Option Agreement at $4.50 per
share.
================================================================================
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to employees in accordance with Form S-8 and Securities
Act Rule 428.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
The following documents filed by Monterey Homes Corporation
("Monterey Homes") are hereby incorporated by reference into this Registration
Statement: (a) Monterey Homes' Annual Report on Form 10-K for the year ended
December 31, 1996, as amended by its Form 10-K/A Report for the fiscal year
ended December 31, 1996; (b) Monterey Homes' Quarterly Reports on Form 10-Q for
the quarters ended March 31 and June 30, 1997; (c) Monterey Homes' Form 8-K
Report dated December 31, 1996, as amended by its Form 8-K/A1 Report dated
December 31, 1996 and its Form 8-K/A2 Report dated December 31, 1996; (d)
Monterey Homes' Form 8-K Report dated June 9, 1997, as amended by its Form 8-K/A
Report dated June 18, 1997; (e) Monterey Homes' Form 8-K Report dated July 15,
1997, as amended by its Form 8-K/A Report dated September 12, 1997; and (f) the
description of Monterey Homes' capital stock contained in the Form 8-A of
Emerald Mortgage Investments Corporation (a predecessor of Monterey Homes) filed
on July 7, 1988.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment to this Registration Statement
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 in this Registration Statement and to be a part hereof from the date
of filing 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 subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
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.
------------------------------------------
Under the provisions of the Maryland General Corporation Law, a
corporation's articles may, with certain exceptions, include any provision
expanding or limiting the liability of its directors and officers to the
corporation or its stockholders for money damages, but may not include any
provision that restricts or limits the liability of its directors or officers to
the corporation or its stockholders to the extent that (i) it is proved that the
person actually received an improper benefit or profit in money, property, or
services for the amount of the benefit or profit in money, property,
3
or services actually received; or (ii) a judgment or other final adjudication
adverse to the person is entered in a proceeding based on a finding in the
proceeding that the person's action, or failure to act, was the result of active
and deliberate dishonesty and was material to the cause of action adjudicated in
the proceeding. The Company's charter contains a provision limiting the personal
liability of officers and directors to the Company and its stockholders to the
fullest extent permitted under Maryland law.
In addition, the provisions of the Maryland General Corporation
Law permit a corporation to indemnify its present and former directors and
officers, among others, against liability incurred, unless it is established
that (i) 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 (ii) the director or officer
actually received an improper personal benefit in money, property, or services,
or (iii) in the case of any criminal proceeding, the director or officer had
reasonable cause to believe that the act or omission was unlawful. The Company's
charter provides that it will indemnify its directors, officers, and others so
designated by the Board of Directors to the full extent allowed under Maryland
law.
Insofar as indemnification for liability 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 Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed. Not applicable.
------------------------------------
Item 8. Exhibits.
---------
Exhibit Index located at Page 8.
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 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, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high end of
the estimated
4
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;
(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) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and 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
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 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 an 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 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 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 court of appropriate jurisdiction the question of 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.
5
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 Phoenix, State of Arizona, on October 14, 1997.
MONTEREY HOMES CORPORATION
By: /s/ Larry W. Seay
------------------------------------
Larry W. Seay
Vice President Finance
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William W. Cleverly, Steven J. Hilton,
John R. Landon and Larry W. Seay, and each of them, his true and lawful
attorneys-in-fact and agents, 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 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 and 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 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, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
- --------- ----- ----
/s/ William W. Cleverly Chairman of the Board and Co-Chief October 10, 1997
- --------------------------------- Executive Officer (Co-Principal
William W. Cleverly Executive Officer)
and Director
/s/ Steven J. Hilton President and Co-Chief Executive October 10, 1997
- --------------------------------- Officer (Co-Principal Executive Officer)
Steven J. Hilton and Director
6
Signature Title Date
- --------- ----- ----
/s/ John R. Landon Chief Operating Officer and Co-Chief October 13 1997
- --------------------------------- Executive Officer (Co-Principal
John R. Landon Executive Officer) and Director
/s/ Larry W. Seay Vice President Finance and Chief October 10, 1997
- --------------------------------- Financial Officer (Principal Financial
Larry W. Seay Officer and Principal Accounting Officer)
/s/ Alan D. Hamberlin Director October 10, 1997
- ---------------------------------
Alan D. Hamberlin
/s/ Robert G. Sarver Director October 10, 1997
- ---------------------------------
Robert G. Sarver
/s/ C. Timothy White Director October 13, 1997
- ---------------------------------
C. Timothy White
7
EXHIBIT INDEX
Exhibit Page or
Number Description Method of Filing
------ ----------- ----------------
4.1 Monterey Homes Corporation Stock Option Plan Filed Herewith
4.2 Stock Option Agreement between the Company and Incorporated by reference
Alan D. Hamberlin to Exhibit 10(h) of the
1995 Form 10-K
5 Opinion of Venable, Baetjer & Howard, Maryland Filed Herewith
counsel (including consent)
23.1 Consent of KPMG Peat Marwick LLP Filed Herewith
23.2 Consent of Ernst & Young LLP Filed Herewith
23.3 Consent of Ernst & Young LLP Filed Herewith
23.4 Consent of Counsel See Exhibit No. 5
24 Power of Attorney See Signature Page
8