As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 7/24/13  WCI Communities, Inc.             S-8         7/24/13    5:159K                                   Merrill Corp-MD/FA

Document/Exhibit                   Description                      Pages   Size 

 1: S-8         Registration of Securities to be Offered to         HTML     91K 
                          Employees Pursuant to an Employee                      
                          Benefit Plan                                           
 2: EX-5.1      Opinion re: Legality                                HTML     24K 
 3: EX-23.1     Consent of Experts or Counsel                       HTML      7K 
 4: EX-23.2     Consent of Experts or Counsel                       HTML      8K 
 5: EX-23.3     Consent of Experts or Counsel                       HTML     10K 

 

As filed with the United States Securities and Exchange Commission on July 24, 2013

Registration No. 333-     

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington,  D.C. 20549

 

 

FORM S-8

 

REGISTRATION STATEMENT

Under

THE SECURITIES ACT OF 1933

 

 

WCI COMMUNITIES, INC.

(Exact Name of Registrant as Specified in its Charter)

 

 

24301 Walden Center Drive
Bonita Springs, Florida 34134

(239) 947-2600
(Address, including zip code, of  principal executive offices)

 

 

WCI COMMUNITIES, INC. 2013 INCENTIVE AWARD PLAN
WCI COMMUNITIES, INC. AMENDED AND RESTATED 2013 LONG TERM INCENTIVE PLAN
WCI COMMUNITIES, INC. AMENDED AND RESTATED 2013 DIRECTOR LONG TERM INCENTIVE PLAN
(Full title of the plans)

 

 

Keith E. Bass
President and Chief Executive Officer
WCI Communities, Inc.
24301 Walden Center Drive
Bonita Springs, Florida 34134
Tel (239) 947-2600
(Name, address and telephone number, including area code, of agent for service)

 

Copies to:

 

Bradd L. Williamson, Esq.

Latham & Watkins LLP

885 Third Avenue

New York, New York 10022

(212) 906-1200

 

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.

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of Securities to be Registered		Amount to be Registered		Proposed Maximum Offering Price Per Share			Proposed Maximum Aggregate Offering Price			Amount of Registration Fee
Common Stock, $0.01 par value		2,060,000	(1)	$	15.00	(2)	$	30,900,000.00		$	4,214.76
Common Stock, $0.01 par value		87,247	(3)	$	15.00	(2)	$	1,308,705.00		$	178.51
Common Stock, $0.01 par value		839,753	(4)	$	15.00	(2)	$	12,596,295.00		$	1,718.14

(1)                                  The WCI Communities, Inc. 2013 Incentive Award Plan authorizes the issuance of up to a maximum of 2,060,000 shares of WCI Communities, Inc. (“Company”) common stock, par value $0.01 per share (“Common Stock”).

 

(2)                                  For purposes of computing the registration fee only.  Pursuant to Rule 457(h) of the Securities Act of 1933, as amended (the “Securities Act”), the Proposed Maximum Offering Price Per Share is based upon  the initial public offering price of Common Stock ($15.00 per share).

 

(3)                                  The WCI Communities, Inc. Amended and Restated 2013 Director Long Term Incentive Plan authorizes the issuance of up to a maximum of 87,247 shares of Common Stock.

 

(4)                                  The WCI Communities, Inc. Amended and Restated 2013 Long Term Incentive Plan authorizes the issuance of up to a maximum of 839,753 shares of Common Stock.

 

 

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1.         Plan Information.

 

Not required to be filed with this Registration Statement.

 

Item 2.         Registrant Information and Employee Plan Annual Information.

 

Not required to be filed with this Registration Statement.

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.         Incorporation of Documents by Reference.

 

The following document, which has been filed by the Company with the United States Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), is incorporated by reference in, and shall be deemed to be a part of, this Registration Statement:

 

(a)           the Company’s prospectus filed with the Commission on May 24, 2013, including all amendments and exhibits thereto, pursuant to Rule 424(b) under the Securities Act, relating to the Registration Statement on Form S-1 (File No. 333-188866).

 

All reports and other documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered pursuant to this Registration Statement have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents or reports.

 

For purposes of this Registration Statement, any document or any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded to the extent that a subsequently filed document or a statement contained therein, or in any other subsequently filed document which also is or is deemed to be incorporated by reference, modifies or supersedes such document or such statement in such document. 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.

 

The Company is incorporated under the laws of the state of Delaware Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties 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 such corporation), by reason of the fact that such person was an officer, director, employee or agent of such corporation, or is or was serving at the request of such person as an officer, director, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person

 

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acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses which such officer or director has actually and reasonably incurred. The Company’s amended and restated certificate of incorporation and amended and restated bylaws provide for the indemnification of the Company’s directors and officers to the fullest extent permitted under the Delaware General Corporation Law.

 

Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for:

 

·                  any breach of the director’s duty of loyalty to the Company or its stockholders;

 

·                  any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

 

·                  any act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or

 

·                  any transaction from which the director derived an improper personal benefit.

 

These limitations of liability do not affect the availability of equitable remedies such as injunctive relief or rescission. The Company’s amended and restated certificate of incorporation also authorizes the Company to indemnify its officers, directors and other agents to the fullest extent permitted under Delaware law.

 

As permitted by Section 145 of the Delaware General Corporation Law, the Company’s amended and restated bylaws provide that:

 

·                  the Company may indemnify its directors, officers, and employees to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions;

 

·                  the Company may advance expenses to its directors, officers and employees in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; and

 

·                  the rights provided in the Company’s amended and restated bylaws are not exclusive.

 

Section 174 of the Delaware General Corporation Law provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held liable for such actions. A director who was either absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.

 

As permitted by the Delaware General Corporation Law, the Company has entered and expect to continue to enter into agreements to indemnify its directors, executive officers and other employees as determined by its

 

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board of directors. The Company has entered into indemnification agreements with its director nominees and amended indemnification agreements with each of its directors and officers. Under the terms of such indemnification agreements, the Company is required to indemnify each of its directors and officers, to the fullest extent permitted by the laws of the state of Delaware, if the basis of the indemnitee’s involvement was by reason of the fact that the indemnitee is or was a director, or officer, of the Company or any of its subsidiaries or was serving at the Company’s request in an official capacity for another entity. The Company must indemnify its officers and directors against all reasonable fees, expenses, charges and other costs of any type or nature whatsoever, including any and all expenses and obligations paid or incurred in connection with investigating, defending, being a witness in, participating in (including on appeal), or preparing to defend, be a witness or participate in any completed, actual, pending or threatened action, suit, claim or proceeding, whether civil, criminal, administrative or investigative, or establishing or enforcing a right to indemnification under the indemnification agreement. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder.

 

In addition, the Company has purchased a policy of directors’ and officers’ liability insurance that insures its directors and officers against the cost of defense, settlement or payment of a judgment in some circumstances. These indemnification provisions and the indemnification agreements may be sufficiently broad to permit indemnification of the Company’s officers and directors for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.

 

Item 7.         Exemption from Registration Claimed.

 

Not applicable.

 

Item 8.         Exhibits.

 

A list of exhibits included as part of this Registration Statement is set forth in the Index to Exhibits appearing elsewhere herein and is incorporated herein by reference.

 

Item 9.         Undertakings.

 

(a)           The undersigned Company 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 this 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 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 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) shall not apply if the information required to be included on a post-effective amendment by those paragraphs is contained in periodic reports filed by or furnished to

 

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