| As filed with the Securities and Exchange Commission on December 6, 2016 | |
| Registration No. _________ | |
UNITED STATES
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 registrant as specified in its charter)
| Maryland (State of Organization) |
23-2715194 (I.R.S. Employer Identification No.) |
411 Theodore Fremd
Avenue, Suite 300
Rye, New York 10580
(914) 288-8100
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
SECOND AMENDED AND RESTATED
ACADIA REALTY
TRUST
2006 SHARE INCENTIVE PLAN
(Full title of the plan)
Kenneth F. Bernstein
President and Chief Executive Officer
Acadia Realty Trust
411 Theodore Fremd Avenue, Suite 300
Rye, New York 10580
(914) 288-8100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Mark Schonberger,
Esq.
Goodwin Procter LLP
620 Eighth Avenue
New York, NY 10018
(212) 813-8800
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 definitions of “large accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer x | Accelerated filer o | |
| Non-accelerated filer o | Smaller reporting company ¨ | |
| (Do not check if smaller reporting company) | ||
CALCULATION OF REGISTRATION FEE
| Title of each class of securities to be registered |
Amount to be registered (1) (2) |
Proposed maximum per unit (3) |
Proposed maximum aggregate offering price |
Amount of registration fee |
| Common shares of beneficial interest, par value $.001 per share | 1,600,000 | $32.95 | $52,720,000.00 | $6,110.25 |
| (1) | Registered herein are 1,600,000 additional common shares of beneficial interest, par value $.001 per share (the “Common Shares”), of Acadia Realty Trust, a Maryland real estate investment trust (the “Registrant”), that may be issued pursuant to its Second Amended and Restated Acadia Realty Trust 2006 Share Incentive Plan (together with previous versions of such plan, the “Plan”). Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover additional Common Shares that may become issuable by reason of any stock split, stock dividend, recapitalization or other similar transactions effected without consideration that results in an increase in the number of the Registrant’s outstanding Common Shares. |
| (2) | The Registrant previously filed a registration statement on Form S-8 (File No. 333-184117) with the Securities and Exchange Commission on September 26, 2012 registering the issuance of Common Shares under the Plan. By filing this Registration Statement in accordance with Instruction E to Form S-8, the Registrant registers the issuance of the 1,600,000 additional Common Shares approved for issuance under the Plan at the annual meeting of the shareholders of the Registrant held on May 9, 2016. |
| (3) | Calculated pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act, the proposed maximum offering price per share of the Common 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 Common Shares, as reported on the New York Stock Exchange on December 5, 2016, which is within five business days prior to the date of filing of this Registration Statement. |
EXPLANATORY NOTE
On September 26, 2012, Acadia Realty Trust, a Maryland real estate investment trust (the “Registrant”) registered 1,933,924 common shares of beneficial interest, par value $.001 per share (the “Common Shares”), to be offered or sold to participants under the Amended and Restated Acadia Realty Trust 2006 Share Incentive Plan (the “Original Plan”) pursuant to the Registration Statement on Form S-8 (File No. 333-184117). The Second Amended and Restated Acadia Realty Trust 2006 Share Incentive Plan (the “Plan”), as approved by the Registrant’s shareholders on May 9, 2016, amended and restated the Original Plan, among other things, to increase the number of Common Shares available for issuance under the Original Plan by 1,600,000 Common Shares. This Registration Statement is being filed in order to register such additional 1,600,000 Common Shares which may be offered or sold to participants under the Plan. The contents of the Registrant’s Registration Statement on Form S-8 (File No. 333-184117), as updated by the information set forth below, are incorporated by reference into this Registration Statement in accordance with General Instruction E to Form S-8.
PART
II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| ITEM 3. | INCORPORATION OF DOCUMENTS BY REFERENCE |
The following documents, which have been filed with the Securities and Exchange Commission (the “SEC”) by the Registrant, are incorporated by reference in this Registration Statement:
(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed with the SEC on February 19, 2016;
(b) The description of the Common Shares contained in the Registrant’s 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 on March 30, 2016 in connection with the annual meeting held on May 9, 2016;
(d) The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2016, filed with the SEC on April 29, 2016, the fiscal quarter ended June 30, 2016, filed with the SEC on July 27, 2016, and the fiscal quarter ended September 30, 2016, filed with the SEC on October 28, 2016; and
(e) The Registrant’s Current Reports on Form 8-K filed with the SEC on March 22, April 8, April 18, May 9, July 1, July 6, August 12, September 9 (Item 8.01 only), and September 12, 2016 (Item 5.02 only).
2
All reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, as amended (the “Exchange Act”) (except for information furnished to the SEC that is not deemed to be “filed” for purposes of the Exchange Act) 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 their respective dates of filing (such documents, and the documents enumerated above, being hereinafter referred to as “Incorporated Documents”).
Any statement contained in an Incorporated Document 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 other subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
| ITEM 6. | INDEMNIFICATION OF DIRECTORS AND OFFICERS |
The Registrant’s declaration of trust authorizes, and the Registrant’s bylaws obligate it, to the maximum extent permitted under Maryland law, to indemnify its trustees and officers in their capacity as such. Section 8-301(15) of the Corporations and Associations Article of the Annotated Code of Maryland permits a Maryland REIT to indemnify or advance expenses to trustees and officers to the same extent as is permitted for directors and officers of a Maryland corporation under the Maryland General Corporation Law (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, in the defense of any proceeding to which he or she is made, or threatened to be made, a party by reason of his or her 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, or threatened to be made a party to, or witness in, 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 or for a judgment of liability on the basis 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 or on his or her behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the standard of conduct was not met.
The Registrant’s declaration of trust authorizes the Registrant, and its bylaws require the Registrant, to the maximum extent permitted by Maryland law, to indemnify (i) any present or former trustee or officer or (ii) any individual who, while serving as the Registrant’s trustee and at the Registrant’s request, serves or has served another corporation, real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner, member, manager, or trustee, from and against any claim or liability to which such person may become subject or which such person may incur by reason of his or her service in such capacity or capacities, and to pay or reimburse his or her reasonable expenses in advance of final disposition of such a proceeding.
3
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 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.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to trustees, officers or persons controlling the registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
| ITEM 8. | EXHIBITS |
| EXHIBIT NO. | DESCRIPTION |
| 4.1 | Second Amended and Restated Acadia Realty Trust 2006 Share Incentive Plan (included as an appendix to Registrant’s definitive proxy statement on Schedule 14-A, filed on March 30, 2016 in connection with the annual meeting held on May 9, 2016 (SEC File No. 001-12002), which is incorporated herein by reference) |
| 5.1 | Opinion of Venable LLP |
| 23.1 | Consent of BDO USA, LLP, Independent Auditors |
| 23.2 | Consent of Venable LLP (included in Exhibit 5.l) |
| 24.1 | Powers of Attorney (included as a part of the signature page of this Registration Statement) |
4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended (the “Securities Act”), 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 Rye, State of New York, on this 6th day of December, 2016.
| 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 Jason Blacksberg, 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) and to cause the same to be filed, with all exhibits thereto and other documents in connection therewith, with the SEC, 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, 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 and Trustee | December 6, 2016 | ||
| Kenneth F. Bernstein | (Principal Executive Officer) | |||
| /s/ John Gottfried | Senior Vice President and Chief Financial Officer | December 6, 2016 | ||
| John Gottfried | (Principal Financial Officer) | |||
| /s/ Richard Hartmann | Senior Vice President and Chief Accounting Officer | December 6, 2016 | ||
| Richard Hartmann | (Principal Accounting Officer) |
5
| Signature | Title | Date | ||
| /s/ Lee S. Wielansky | Independent Lead Trustee | December 6, 2016 | ||
| Lee S. Wielansky | ||||
| /s/ Lorrence T. Kellar | Trustee | December 6, 2016 | ||
| Lorrence T. Kellar | ||||
| /s/ Douglas Crocker II | Trustee | December 6, 2016 | ||
| Douglas Crocker II | ||||
| /s/ Wendy Luscombe | Trustee | December 6, 2016 | ||
| Wendy Luscombe | ||||
| /s/ William Spitz | Trustee | December 6, 2016 | ||
| William Spitz | ||||
| /s/ Lynn Thurber | Trustee | December 6, 2016 | ||
| Lynn Thurber | ||||
| /s/ C. David Zoba | Trustee | December 6, 2016 | ||
| C. David Zoba |
6
INDEX TO EXHIBITS
| EXHIBIT NO. | DESCRIPTION |
| 4.1 | Second Amended and Restated Acadia Realty Trust 2006 Share Incentive Plan (included as an appendix to Registrant’s definitive proxy statement on Schedule 14-A, filed on March 30, 2016 in connection with the annual meeting held on May 9, 2016 (SEC File No. 001-12002), which is incorporated herein by reference) |
| 5.1 | Opinion of Venable LLP |
| 23.1 | Consent of BDO USA, LLP, Independent Auditors |
| 23.2 | Consent of Venable LLP (included in Exhibit 5.l) |
| 24.1 | Powers of Attorney (included as a part of the signature page of this Registration Statement) |
Exhibit 5.1
[LETTERHEAD OF VENABLE LLP]
December 6, 2016
Acadia Realty Trust
411 Theodore Fremd Avenue, Suite 300
Rye, New York 10580
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have served as Maryland counsel to Acadia Realty Trust, a Maryland real estate investment trust (the “Company”), in connection with certain matters of Maryland law relating to the registration by the Company of 1,600,000 common shares (the “Shares”) of beneficial interest, par value $0.001 per share, of the Company (the “Common Shares”), that the Company may issue pursuant to the Company’s Second Amended and Restated Acadia Realty Trust 2006 Share Incentive Plan (the “Plan”), covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof.
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1. The Registration Statement;
2. The Declaration of Trust of the Company, as amended (the “Declaration of Trust”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Amended and Restated Bylaws of the Company, as amended, certified as of the date hereof by an officer of the Company;
4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
5. The Plan;
6. Resolutions (the “Resolutions”) adopted by the Board of Trustees of the Company, relating to the issuance of the Shares and the approval of the Plan, certified as of the date hereof by an officer of the Company;
7. The Amended and Restated Agreement of Limited Partnership of Acadia Realty Limited Partnership, a Delaware limited partnership (the “Operating Partnership”), as amended through the date hereof (the “Partnership Agreement”), certified as of the date hereof by an officer of the Company;
8. A certificate executed by an officer of the Company, dated as of the date hereof; and
9. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. The Shares will not be issued or transferred in violation of the restrictions on transfer and ownership contained in Article VI of the Declaration of Trust or any restrictions contained in the Plan. Upon the issuance of any of the Shares, the total number of Common Shares issued and outstanding will not exceed the total number of Common Shares that the Company is then authorized to issue under the Declaration of Trust.
6. Each option, award, right or other security exercisable or exchangeable for a Share pursuant to the Plan (each, an “Award”) will be duly authorized and validly granted in accordance with the Plan, and each Award will be exercised or exchanged in accordance with the terms of the Plan and such Award, including any option or award agreement entered into in connection therewith.
7. Any units of limited partnership interest in the Operating Partnership issued pursuant to the Plan will have been duly authorized and validly issued by the Operating Partnership and will be exchanged for Shares in accordance with the Partnership Agreement.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Trust is a real estate investment trust duly formed and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The issuance of the Shares has been duly authorized and, when issued and delivered by the Company pursuant to the Resolutions and the Plan, the Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the Securities Act.
Very truly yours,
/s/ VENABLE LLP |
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
Acadia Realty Trust
Rye, New York
We hereby consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Second Amended and Restated Acadia Realty Trust 2006 Share Incentive Plan of our reports dated February, 19, 2016, relating to the consolidated financial statements, the effectiveness of Acadia Realty Trust’s internal control over financial reporting, and schedule of Acadia Realty Trust appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2015.
/s/ BDO USA, LLP
New York, New York
December 6, 2016