AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 29, 2004.
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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BROOKFIELD HOMES CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 37-1446709
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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12865 POINTE DEL MAR
SUITE 200
DEL MAR, CA 92014
(Address of principal executive offices)
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BROOKFIELD HOMES CORPORATION STOCK OPTION PLAN
(Full title of the plan)
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TORYS LLP
237 PARK AVENUE
NEW YORK, NY 10017
ATTENTION: ANDREW J. BECK
(212) 880-6000
(Name, address and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of securities Proposed Maximum Aggregate Offering Amount of
to be registered Amount to be Offering Price per Price(2) Registration
------------------- Registered(1) Share(2) ------------------ Fee
------------- ------------------ ------------
Common Shares 2,000,000 shares $26.12 $52,240,000 $6,619
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(1) Plus such indeterminate number of common shares of the Registrant as may
be issued to prevent dilution resulting from stock dividends, stock splits
or similar transactions in accordance with Rule 416 under the Securities
Act of 1933.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457 under the Securities Act based upon the average
of the reported high and low sales price of the common shares of
Brookfield Homes Corporation on June 22, 2004 on the New York Stock
Exchange (a date within five business days of the filing of this
Registration Statement).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 are not required to be filed with the SEC either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
the Note to Part I of Form S-8 and Rule 424 under the Securities Act of 1933.
The information required in the Section 10(a) prospectus is included in
documents being maintained and delivered by Brookfield Homes Corporation as
required by Part I of Form S-8 and by Rule 428 under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been and will in the future be
filed by us with the SEC are incorporated in the Registration Statement by
reference:
(a) Our Annual Report on Form 10-K for the fiscal year ended
December 31, 2003, which contains our audited financial
statements for such fiscal year.
(b) All other reports filed by our company under Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since December
31, 2003.
(c) The description of our common shares contained in our
Registration Statement on Form 10, as filed with the SEC on
October 31, 2002, including any amendment or report filed for
the purpose of amending such description.
In addition, all reports and documents filed by us under Section
13(a), 13(c), 14 or 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 being offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in and to be part of this Registration Statement from
the date of filing of each such document.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law,
our certificate of incorporation states that we may indemnify any officer or
director against any liability, loss, damage or expense incurred or suffered by
the officer or director in the individual's capacity as officer or director,
subject to the Delaware General Corporation Law and except for liability
resulting from intentional misconduct or a knowing violation of law.
To the extent any director or officer is successful in defending any
proceeding, whether civil or criminal, our certificate of incorporation states
that we will indemnify the individual for all liabilities incurred in the
individual's capacity as officer or director.
Our certificate of incorporation permits us, subject to applicable
law, to advance the expenses incurred in defending any civil or criminal action
for which indemnification is required against an undertaking of the indemnified
person to repay the amount advanced if it is ultimately determined that the
indemnified person is not entitled to be indemnified and subject to a
determination by our board of directors or, in specified situations, independent
legal counsel or a majority vote of our stockholders, that indemnification would
be proper in the circumstances.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling our company pursuant to the foregoing provisions, we have been
informed that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act of 1933 and is therefore
unenforceable.
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 Exhibit Index to this Registration Statement.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes, except as otherwise
specifically provided in the rules of the Securities and Exchange Commission
promulgated under the Securities Act of 1933:
(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 this Registration Statement (or the most recent
post-effective amendment
hereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (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 the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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; and
(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.
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 that is incorporated by reference in this
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.
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 such 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 such 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 Del Mar, California on the 29th day of June, 2004.
BROOKFIELD HOMES CORPORATION
By: /s/ Ian G. Cockwell
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Name: Ian G. Cockwell
Title: President and Chief Executive
Officer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Ian G.
Cockwell and Paul G. Kerrigan, and each of them, either of whom may act without
the joinder of the other, as 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 or all post-effective
amendments to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the U.S.
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents 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 said
attorneys-in-fact and agents 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 below by the following persons in the
capacities listed below and on June 29, 2004.
SIGNATURE TITLE
/s/ Ian G. Cockwell President and Chief Executive Officer and Director
------------------------ (principal executive officer)
Ian G. Cockwell
/s/ Paul G. Kerrigan Executive Vice President, Chief Financial Officer
------------------------ and Treasurer (principal financial and accounting
Paul G. Kerrigan officer)
/s/ J. Bruce Flatt Chairman of the Board
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J. Bruce Flatt
/s/ Gordon E. Arnell Director
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Gordon E. Arnell
/s/ Robert A. Ferchat Director
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Robert A. Ferchat
/s/ Bruce T. Lehman Director
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Bruce T. Lehman
/s/ Alan Norris Director
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Alan Norris
/s/ David M. Sherman Director
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David M. Sherman
/s/ Robert L. Stelzl Director
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Robert L. Stelzl
/s/ Michael D. Young Director
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Michael D. Young
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF EXHIBIT
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4.1 Brookfield Homes Corporation Stock Option Plan
(previously filed as Exhibit 10.5 to the Registrant's
Registration Statement on Form 10/A filed with the
Securities and Exchange Commission on December 9, 2002).
4.2 Amended and Restated Certificate of Incorporation (previously filed as Exhibit
3.1 to the Registrant's Registration Statement on Form 10 filed with the
Securities and Exchange Commission on October 31, 2002).
4.3 Amended and Restated By-laws (previously filed as Exhibit 3.2 to the
Registrant's Registration Statement on Form 10 filed with the Securities and
Exchange Commission on October 31, 2002).
5.1 Opinion of Torys LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Torys LLP (contained in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page of this Registration
Statement).