As filed with the Securities and Exchange Commission on July 2, 2003.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
ACADIA REALTY TRUST
(Exact name of issuer as specified in its charter)
Maryland 23-2715194
(State of Incorporation) (IRS Employer Identification Number)
1311 Mamaroneck Avenue, Suite 260 White Plains, NY 10605
(Address of Principal Executive Offices) (Zip Code)
ACADIA REALTY TRUST
2003 SHARE INCENTIVE PLAN
ACADIA REALTY TRUST
2003 EMPLOYEE SHARE PURCHASE PLAN
(Full title of the Plans)
Kenneth F. Bernstein, Chief Executive Officer
Acadia Realty Trust
1311 Mamaroneck Avenue, Suite 260
White Plains, NY 10605
(Name and address of agent for service)
(914) 288-8100
(Telephone number, including area code, of agent for service)
copy to:
J. Mark Poerio, Esq.
Paul, Hastings, Janofsky & Walker LLP
1299 Pennsylvania Ave., N.W., 10th Floor
Washington, DC 20004-2400
(202) 508-9582
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
registered registered (1) Offering Price Aggregate Offering Registration Fee
Per Unit (2) Price
Common Shares, par value $.001 per 1,163,008 $9.14 $10,629,893 $859.96
share
Common Shares, par value $.001 per 100,000 $9.14 $914,000 $73.94
share
(1) Registered herein are (i) 1,163,008 shares of the issuer's Common Shares
that may be issued pursuant to its 2003 Share Incentive Plan and (ii) 100,000
shares of the issuer's Common Shares that may be issued pursuant to its 2003
Employee Share Purchase Plan. Also registered hereunder are such additional
number of Common Shares, presently indeterminable, as may be necessary to
satisfy the anti-dilution provisions of the Plans to which this Registration
Statement relates in accordance with Rule 416 under the Securities Act of 1933,
as amended (the "Securities Act");
(2) Calculated pursuant to paragraphs (c) and (h) of Rule 457 of the Securities
Act, the proposed maximum offering price per share of the shares being
registered is estimated solely for the purpose of determining the registration
fee, based upon the average of the high and low prices per share of the
Registrant's Common Shares, as reported on the New York Stock Exchange on June
30, 2003, which is within five business days prior to the date of filing of this
Registration Statement.
PART I
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in Item 1 of Part I of
this Registration Statement will be sent or given to participants who receive
awards under the Acadia Realty Trust 2003 Share Incentive Plan or who have the
opportunity to make purchases under the Acadia Realty Trust 2003 Employee Share
Purchase Plan and, in accordance with Section 10(a) of the Securities Act and
Rules 424 and 428 promulgated under the Securities Act by the Securities and
Exchange Commission (the "Commission") are not being filed with, or included in,
this Registration Statement.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in Item 2 of Part I of
this Registration Statement will be sent or given free of charge to participants
who receive awards under the Acadia Realty Trust 2003 Share Incentive Plan or
who have the opportunity to make purchases under the Acadia Realty Trust 2003
Employee Share Purchase Plan and, in accordance with Section 10(a) of the
Securities Act and Rule 428 promulgated under the Securities Act, are not being
filed with, or included in, this Registration Statement. The requests can be
sent to:
Acadia Realty Trust
1311 Mamaroneck Avenue
Suite 260
White Plains, New York 10605
Attn: Robert Masters, Esq.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed with the SEC by the
Registrant, are incorporated by reference in this Registration Statement. The
information incorporated by reference is considered to be part of this
Registration Statement, and information that the Registrant files later with the
SEC will automatically update and supersede this information. The Registrant
incorporates by reference the documents listed below and any future filings the
Registrant makes with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2002, filed with the SEC on March 28, 2003 (SEC File No.
001-12002); and
(b) The description of the Registrant's common shares of beneficial
interest contained in its Registration Statement on Form 8-A dated May 21, 1993
(SEC File No. 33-6008), filed on May 26, 1993 pursuant to Section 12(g) of the
Exchange Act, as amended, including any amendment or report filed for the
purpose of updating such description;
(c) The Registrant's definitive proxy statement on Schedule 14-A, filed in
connection with the annual meeting held on June 25, 2003 (SEC File No.
001-2002);
(d) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2003, filed within SEC on May 14, 2003 (SEC File No. 001-12002);
and
(e) The Registrant's Form 8-K filed with the SEC on April 24, 2003 (SEC
File No. 001-12002).
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Martin L. Edelman, one of the Registrant's trustees, is counsel to the law
firm of Paul, Hastings, Janofsky & Walker LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's bylaws and declaration of trust authorize the Registrant,
to the extent permitted under Maryland law, to indemnify its trustees and
officers in their capacity as such. Section 8-301(15) of the Maryland General
Corporation Law ("MGCL") permits a Maryland REIT to indemnify or advance
expenses to trustees and officers to the same extent as is permitted
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for directors and officers of a Maryland corporation under the MGCL. The MGCL
requires a Maryland corporation (unless its charter provides otherwise, which
the Registrant's declaration of trust does not) to indemnify a director or
officer who has been successful, on the merits or otherwise, for reasonable
expenses incurred in the defense of any proceeding to which he is made a party
by reason of his service in that capacity. The MGCL permits a Maryland
corporation to indemnify its present and former directors and officers, among
others, against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service in those or other capacities unless it
is established that (a) the act or omission of the director or officer was
material to the matter giving rise to the proceeding and (i) was committed in
bad faith or (ii) was the result of active and deliberate dishonesty, (b) the
director or officer actually received an improper personal benefit in money,
property or services or (c) in the case of any criminal proceeding, the director
or officer had reasonable cause to believe that the act or omission was
unlawful. However, a Maryland corporation may not indemnify for an adverse
judgment in a suit by or in the right of the corporation for a judgment of
liability on the basis that the officer or director shall have been adjudged to
be liable to the Registrant or that a personal benefit was improperly received,
unless in either case a court orders indemnification and then only for expenses.
In addition, the MGCL permits a corporation to advance reasonable expenses to a
director or officer upon the corporation's receipt of a written affirmation by
the director or officer of his or her good faith belief that he or she has met
the standard of conduct necessary for indemnification by the corporation and a
written undertaking by such director or officer on his or her behalf to repay
the amount paid or reimbursed by the corporation if it shall ultimately be
determined that the standard of conduct was not met.
The Registrant's bylaws also permit the Registrant, subject to the approval
of its board of trustees, to indemnify and advance expenses to any person who
served as a predecessor of the Registrant in any of the capacities described
above and to any employee or agent of the Registrant or a predecessor of the
Registrant.
In addition to the above, the Registrant has purchased and maintains
insurance on behalf of all of its trustees and executive officers against
liability asserted against or incurred by them in their official capacities with
the Registrant, whether or not the Registrant is required or has the power to
indemnify them against the same liability.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
EXHIBIT
NO. DESCRIPTION
4.1 Acadia Realty Trust 2003 Share Incentive Plan (included as an
appendix to Registrant's definitive proxy statement on Schedule 14-A,
filed in connection with the annual meeting held on June 25, 2003
(SEC File No. 001-2002), which is
4
incorporated herein by reference)
4.2 Acadia Realty Trust 2003 Employee Share Purchase Plan (included as an
appendix to Registrant's definitive proxy statement on Schedule 14-A,
filed in connection with the annual meeting held on June 25, 2003
(SEC File No. 001-2002), which is incorporated herein by reference)
5.1 Opinion of Berliner, Corcoran & Rowe, LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Berliner, Corcoran & Rowe, LLP (included in
Exhibit 5.1)
24.1 Powers of Attorney (included as a part of the signature
page of this Registration Statement)
99.1 Form of Share Award Agreement for Acadia Realty Trust
2003 Share Incentive Plan
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes the following:
(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. 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; and
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(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 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
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) 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) The undersigned Registrant hereby undertakes, that, 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 Commission 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Acadia Realty
Trust 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 White Plains, State of New York, on this 2nd day of
July, 2003.
ACADIA REALTY TRUST
A Maryland real estate investment trust (Registrant)
By: /s/ Kenneth F. Bernstein
-----------------------------------------
Name: Kenneth F. Bernstein
Title: Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Kenneth F. Bernstein and Robert Masters, and each or either of them, his true
and lawful attorney-in-fact 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 (including post-effective amendments) to this Registration
Statement (or any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933)
and to cause the same to be filed, with all exhibits thereto and other documents
in connection therewith, with the
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Securities and Exchange Commission, hereby granting to said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing whatsoever requisite or desirable to be done in and
about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all acts and things
that said attorneys-in-fact and agents, or either of them, or their substitutes
or substitute, 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 and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Kenneth F. Bernstein Chief Executive Officer, President July 2, 2003
---------------------- and Trustee (Principal Executive
Kenneth F. Bernstein Officer)
/s/ Ross Dworman Trustee July 2, 2003
----------------------
Ross Dworman
/s/ Martin L. Edelman Trustee July 2, 2003
----------------------
Martin L. Edelman
/s/ Alan S. Forman Trustee July 2, 2003
----------------------
Alan S. Forman
/s/ Marvin L. Levine Trustee July 2, 2003
----------------------
Marvin L. Levine
/s/ Lawrence J. Longua Trustee July 2, 2003
----------------------
Lawrence J. Longua
/s/ Gregory White Trustee July 2, 2003
----------------------
Gregory White
/s/ Lee S. Wielansky
----------------------
Lee S. Wielansky Trustee July 2, 2003
[Signatures continue on the following page]
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Signature Title Date
--------- ----- ----
/s/ Michael Nelson Senior Vice President and Chief July 2, 2003
------------------- Financial Officer (Principal
Financial and Accounting Officer)
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INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
4.1 Acadia Realty Trust 2003 Share Incentive Plan (included as an
appendix to Registrant's definitive proxy statement on Schedule 14-A,
filed in connection with the annual meeting held on June 25, 2003
(SEC File No. 001-2002), which is incorporated herein by reference)
4.2 Acadia Realty Trust 2003 Employee Share Purchase Plan (included as an
appendix to Registrant's definitive proxy statement on Schedule 14-A,
filed in connection with the annual meeting held on June 25, 2003
(SEC File No. 001-2002), which is incorporated herein by reference)
5.1 Opinion of Berliner, Corcoran & Rowe, L.L.P.
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Berliner, Corcoran & Rowe, L.L.P. (included in Exhibit
5.1)
24.1 Powers of Attorney (included as a part of the signature page of this
Registration Statement)
99.1 Form of Share Award Agreement under 2003 Share Incentive Plan