AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 17, 2004
REGISTRATION NO. 333-
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UNITED STATES
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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AFFORDABLE RESIDENTIAL COMMUNITIES INC.
(Exact name of registrant as specified in its governing instruments)
MARYLAND 84-1477939
(State or other jurisdiction of Identification No.)
incorporation or organization)
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600 GRANT STREET, SUITE 900
DENVER, COLORADO 80203
(Address of principal executive offices)
AFFORDABLE RESIDENTIAL COMMUNITIES INC. 2003 EQUITY INCENTIVE PLAN
(Full title of the plan)
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SCOTT D. JACKSON
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
600 GRANT STREET, SUITE 900
DENVER, COLORADO 80203
(303) 383-7500
(303) 294-9621 (FACSIMILE)
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
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Copies To:
FRED B. WHITE, III, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
FOUR TIMES SQUARE
NEW YORK, NEW YORK 10036
(212) 735-3000
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED (1) PER SHARE OFFERING PRICE FEE
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Common stock, par value $0.01 per share (2) 1,992,387 $19.03 (3) $37,915,124.61 $4,803.85
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers additional shares that may become
issuable under the plans by reason of certain corporate transactions or
events, including any stock dividend, stock split, recapitalization or any
other similar transaction effected without the receipt of consideration
which results in an increase in the number of the registrant's outstanding
shares of common stock.
(2) Represents the maximum number of shares of common stock issuable under the
2003 Equity Incentive Plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act by
averaging the high and low sales prices of ARC common stock as reported by
the NYSE on February 13, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* The documents containing the information specified in Part I of Form S-8 will
be sent or given to employees as specified by Rule 428(b)(1) of the Securities
Act of 1933, as amended (the "Securities Act"). Such documents need not be filed
with the Securities and Exchange Commission (the "SEC") either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
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 registration statement, 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 Registrant hereby incorporates the following documents in this
Registration Statement by reference:
(1) The Registrant's Registration Statement on Form S-11, as amended (File
No. 333-109816) originally filed on October 20, 2003 under the Securities Act of
1933, as amended; and
(2) The description of the Registrant's common stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission on
February 9, 2004.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities covered hereby then remaining unsold are incorporated
by reference in this Registration Statement and are 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 subsequently filed document which also is
or 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 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 Registrant's charter contains a provision permitted under Maryland
General Corporation Law giving it the power to eliminate each director's and
officer's personal liability for monetary damages.
The Registrant's bylaws provide that the Company will indemnify any person
who is or was a director or officer of the Registrant to the fullest extent
provided by Maryland law. The indemnification provisions contained in the
Registrant's bylaws are not exclusive of any other rights to which a person may
be entitled under any bylaw, regulation, insurance, agreement or otherwise.
In addition, the Registrant's directors and officers are indemnified for
specified liabilities and expenses pursuant to the partnership agreement of
Affordable Residential Communities LP, the partnership of which the Registrant
is the sole general partner.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NO. DESCRIPTION
--- -----------
4.1 Form of Articles of Amendment and Restatement of
Affordable Residential Communities Inc.*
4.2 Form of Amended and Restated Bylaws of
Affordable Residential Communities Inc.*
4.3 Affordable Residential Communities Inc. 2003 Equity Incentive Plan.*
5.1 Opinion of Venable LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Venable LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
* Incorporated by reference to the Company's Registration Statement on Form
S-11, as amended (Registration No. 333-109816), filed with the SEC.
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 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) of this
section do 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 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 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.
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 Denver, State of Colorado, on February 12, 2004.
AFFORDABLE RESIDENTIAL COMMUNITIES INC.
By: /s/ Scott D. Jackson
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Name: Scott D. Jackson
Title: Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Scott D. Jackson and John G. Sprengle, and each
of them, with full power to act without the other, such person's 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 this Registration Statement, and any and all amendments
thereto (including post-effective amendments), and to file the same, with
exhibits and schedules 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 necessary or desirable to be done in
and about the premises, as fully 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 any of them, or their 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 12th day of February, 2004.
SIGNATURE TITLE
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/s/ Scott D. Jackson Chairman, President and Chief Executive Officer
------------------------- (Principal Executive Officer)
Scott D. Jackson
/s/ John G. Sprengle Vice Chairman of the Board,
------------------------- Executive Vice President and Chief Financial Officer
John G. Sprengle (Principal Financial Officer)
/s/ Todd M. Abbrecht Director
-------------------------
Todd M. Abbrecht
Director
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Michael Greene
/s/ Randall A. Hack Director
-------------------------
Randall A. Hack
/s/ Thomas A. Hagerty Director
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Thomas A. Hagerty
Director
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Eugene Mercy, Jr.
Director
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Charles Santos-Buch
/s/ Scott A. Schoen Director
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Scott A. Schoen
/s/ Lawrence E. Kreider Executive Vice President and Finance, Accounting and
------------------------- Chief Information Officer
Lawrence E. Kreider (Principal Accounting Officer)
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
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4.1 Form of Articles of Amendment and Restatement of
Affordable Residential Communities Inc.*
4.2 Form of Amended and Restated Bylaws of
Affordable Residential Communities Inc.*
4.3 Affordable Residential Communities Inc. 2003 Equity Incentive Plan.*
5.1 Opinion of Venable LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Venable LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
* Incorporated by reference to the Company's Registration Statement on Form
S-11, as amended (Registration No. 333-109816), filed with the SEC.