<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 6, 1998
Registration Statement No. 333-_____
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
-------------------------
AMERICAN REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 54-0697989
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
10670 NORTH CENTRAL EXPRESSWAY
SUITE 300
DALLAS, TEXAS 75231
(214) 692-4700
(Address and telephone number of principal executive offices)
1997 STOCK OPTION PLAN
(Full title of the plan)
ROBERT A. WALDMAN
10670 NORTH CENTRAL EXPRESSWAY
SUITE 300
DALLAS, TEXAS 75231
(214) 692-4700
(Name, address and telephone number of agent for service)
-------------------------
The Commission is requested to send copies of all communications to:
THOMAS R. POPPLEWELL
Andrews & Kurth L.L.P.
1711 Main Street, Suite 3700
Dallas, Texas 75201
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
PROPOSED PROPOSED
TITLE OF EACH CLASS MAXIMUM MAXIMUM
OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED PER SHARE(1) PRICE(1) REGISTRATION FEE
- -------------------------------------------- -------------------- -------------- ------------------ ----------------
<S> <C> <C> <C> <C>
COMMON STOCK, $0.01 PAR VALUE............... 300,000 shares $ 14.875 $ 4,462,500 $ 1,316.44
- -------------------------------------------- -------------------- -------------- ------------------ ----------------
</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the
amount of the registration fee, based on the average of the high and low
sales prices of the Common Stock as reported by the New York Stock Exchange
on April 2, 1998.
===============================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, heretofore filed by American Realty Trust,
Inc. ("ART") with the Commission, are hereby incorporated by reference, except
as superseded or modified herein:
1. ART's Annual Report on Form 10-K for the fiscal year ended December
31, 1997, as filed with the Commission on March 30, 1998.
2. The Annual Report on Form 10-K for Continental Mortgage and Equity
Trust ("CMET") for the year ended December 31, 1997, as filed with the
Commission on March 20, 1998.
3. The Current Report on Form 8-K for Income Opportunity Realty
Investors, Inc. ("IORI") dated December 30, 1997, as filed with the Commission
on January 9, 1998.
4. The Annual Report on Form 10-K for IORI for the year ended
December 31, 1997, as filed with the Commission on March 29, 1998.
5. The Current Report on Form 8-K for Transcontinental Realty
Investors, Inc. ("TCI") dated December 22, 1997, as filed with the Commission on
January 9, 1998.
6. The Annual Report on Form 10-K for TCI for the year ended
December 31, 1997, as filed with the Commission on March 20, 1998.
7. The Annual Report on Form 10-K for National Realty, L.P. ("NRLP")
for the year ended December 31, 1997, as filed with the Commission on March 26,
1998.
8. The description of the Common Stock contained in ART's Registration
Statement under Section 12 of the Exchange Act and all amendments and reports
filed for the purpose of updating that description.
Each document filed by ART, CMET, IORI, TCI or NRLP pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment 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 part
hereof from the date of filing of such document.
ITEM 4. DESCRIPTION OF SECURITIES.
The information required by Item 4 is not applicable to this
Registration Statement.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The information required by Item 5 is not applicable to this
Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Thirteen of ART's Articles of Incorporation provides that, to
the fullest extent permitted by Georgia law, as the same exists or may hereafter
be amended, no director of ART shall be personally liable to ART or the
shareholders of ART for monetary damages for breach of the duty of care as a
director, provided that Article Thirteen does not limit or eliminate liability
II-1
<PAGE> 3
for (i) a breach of duty involving an appropriation of a business opportunity of
ART; (ii) an act or omission not in good faith or involving intentional
misconduct or a knowing violation of law; or (iii) a transaction from which the
director derived an improper personal benefit. In addition, a director's
liability will not be limited as to any payment of a dividend or approval of a
stock repurchase that is illegal under Section 14-2-640 of the Georgia Business
Corporation Code.
Article Thirteen applies only to claims against a director arising out
of his or her role as a director and not, if he or she is also an officer, his
or her role as an officer or in any other capacity. In addition, Article
Thirteen does not reduce the exposure of directors to liability under Federal
securities laws.
The Bylaws of ART require ART to indemnify any person who, by reason
of the fact that he is or was a director of ART, is made or is threatened to be
made a party to an action, including an action brought by ART or its
shareholders. The Bylaws provide that ART will indemnify such person against
reasonably incurred expenses (including, but not limited to, attorneys' fees and
disbursements, court costs, and expert witness fees), and against any judgments,
fines and amounts paid in settlement, provided that ART shall not indemnify such
person under circumstances in which the Georgia Business Corporation Code, as in
effect from time to time, would not allow indemnification.
The Bylaws of ART give the ART Board the power to cause ART to provide
to officers, employees, and agents of ART all or any part of the right to
indemnification afforded to directors of ART as set forth in the Bylaws, subject
to the conditions, limitations and obligations therein, upon a resolution to
that effect identifying such officer, employee or agent and specifying the
particular rights provided.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of ART
pursuant to the foregoing provisions, ART has been informed that in the opinion
of the Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The information required by Item 7 is not applicable to this
Registration Statement.
ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION
- ------- -----------
5.1 Opinion of Holt Ney Zatcoff & Wasserman, LLP, as to the legality of
the Common Stock being offered
23.1 Consent of BDO Seidman, LLP (American Realty Trust, Inc.)
23.2 Consent of BDO Seidman, LLP (Continental Mortgage and Equity Trust)
23.3 Consent of BDO Seidman, LLP (Income Opportunity Realty Investors,
Inc.)
23.4 Consent of BDO Seidman, LLP (Transcontinental Realty Investors, Inc.)
23.5 Consent of BDO Seidman, LLP (National Realty, L.P.)
23.6 Consent of Holt Ney Zatcoff & Wasserman, LLP (incorporated in
Exhibit 5.1)
24.1 Power of Attorney (set forth on page II-4 of this Registration
Statement)
II-2
<PAGE> 4
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;
(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 (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 by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this 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 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.
(c) 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 Securities and Exchange
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 of
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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<PAGE> 5
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 Dallas, State of Texas, on the 6th day of April
1998.
AMERICAN REALTY TRUST, INC.
By: /s/ KARL L. BLAHA
------------------------------------------
Karl L. Blaha
President (Principal Executive Officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Robert
A. Waldman his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him 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, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully as to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue thereof.
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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ KARL L. BLAHA
----------------------------- President (Principal Executive April 6, 1998
Karl L. Blaha Officer) and Director
/s/ ROY E. BODE
----------------------------- Director April 6, 1998
Roy E. Bode
/s/OSCAR W. CASHWELL
----------------------------- Director April 6, 1998
Oscar W. Cashwell
/s/ AL GONZALEZ
----------------------------- Director April 6, 1998
Al Gonzalez
/s/ CLIFF HARRIS
----------------------------- Director April 6, 1998
Cliff Harris
/s/THOMAS A. HOLLAND
----------------------------- Executive Vice President and April 6, 1998
Thomas A. Holland Chief Financial Officer
(Principal Financial and
Accounting Officer)
</TABLE>
II-4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
5.1 Opinion of Holt Ney Zatcoff & Wasserman, LLP, as to the legality of
the Common Stock being offered
23.1 Consent of BDO Seidman, LLP (American Realty Trust, Inc.)
23.2 Consent of BDO Seidman, LLP (Continental Mortgage and Equity Trust)
23.3 Consent of BDO Seidman, LLP (Income Opportunity Realty Investors,
Inc.)
23.4 Consent of BDO Seidman, LLP (Transcontinental Realty Investors, Inc.)
23.5 Consent of BDO Seidman, LLP (National Realty, L.P.)
23.6 Consent of Holt Ney Zatcoff & Wasserman, LLP (incorporated in
Exhibit 5.1)
24.1 Power of Attorney (set forth on page II-4 of this Registration
incorporated in Exhibit 5.1 Statement)
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[HOLT NEY ZATCOFF & WASSERMAN, LLP LETTERHEAD]
April 6, 1998
American Realty Trust, Inc.
10670 North Central Expressway, Suite 300
Dallas, Texas 75231
Andrews & Kurth L.L.P.
Attn: J. Kevin Boardman, Esq.
1717 Main Street, Suite 3700
Dallas, Texas 75201
Re: POTENTIAL ISSUANCE OF SHARES OF COMMON STOCK, PAR VALue $.01
PER SHARE ("COMMON STOCK"), OF AMERICAN REALTY TRUST, INC., A
GEORGIA CORPORATION ("ART"), UPON EXERCISE OF OPTIONS GRANTED
PURSUANT TO ART'S 1997 STOCK OPTION PLAN (THE "PLAN")
Ladies and Gentlemen:
We have acted as special Georgia counsel to ART with respect to the
application and interpretation of the Georgia Business Corporation Code (the
"GBCC") to the potential issuance of shares of Common Stock upon exercise of
options granted pursuant to the Plan. This opinion letter is rendered at the
request of ART to facilitate ART's contemporaneous registration (the
"Registration") of 300,000 shares of Common Stock with the Securities and
Exchange Commission for potential issuance upon exercise of options granted
pursuant to the Plan.
In the capacity described above, we have considered such matters of
law and of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of ART,
certificates of officers and representatives of ART, certificates of public
officials, and other documents as we have deemed appropriate as a basis for the
opinion hereinafter set forth.
<PAGE> 2
HOLT NEY ZATCOFF & WASSERMAN, LLP
American Realty Trust, Inc.
Andrews & Kurth L.L.P.
April 6, 1998
Page 2
Based upon the foregoing, as of this date, and subject to the
assumptions, limitations and qualifications set forth in the lettered
paragraphs which follow this paragraph, we are of the opinion that upon a
Qualified Issuance (as defined in the following sentence) of shares of Common
Stock the shares of Common Stock issued in connection therewith will be duly
authorized, validly issued, fully paid and nonassessable, with no personal
liability attaching to the ownership thereof. For purposes of this opinion, an
issuance of shares of Common Stock is a "Qualified Issuance" if, and only if:
(a) it is effected in accordance with the Plan upon exercise of one or more
options granted pursuant to the Plan; and (b) the number of shares of Common
Stock being issued in connection therewith does not cause the total number of
issued shares of Common Stock to exceed the total number of shares of Common
Stock which ART is authorized to issue.
The opinion expressed herein is subject to the following assumptions,
limitations and qualifications.
A. As to various questions of fact material to this opinion, we
have relied solely upon the statements and certifications of
Robert A. Waldman, Secretary of ART.
B. We have made no investigation regarding the accuracy or
truthfulness of any representations, warranties, statements of
fact or assumptions of fact contained in any documents,
records, instruments, letters or other writings examined by
us, and we express no opinion herein regarding the same.
C. We expressly note that our opinion expressed herein does not
mean that: (a) any past or future authorization of shares of
Common Stock complied or will comply with agreements by which
ART is bound; (b) any particular issuance of shares of Common
Stock will be a Qualified Issuance or will comply with
agreements by which ART may now or then be bound; (c) any past
or future authorization of shares of Common Stock or any
particular issuance of shares of Common Stock complied or will
comply with (i) the fiduciary duties of the directors of ART
or (ii) any law other than the GBCC (including but not limited
to federal or state securities laws); (d) ART has reserved or
has available or will reserve or have available sufficient
numbers of authorized shares of Common Stock to effect any
particular issuance upon exercise of
<PAGE> 3
HOLT NEY ZATCOFF & WASSERMAN, LLP
American Realty Trust, Inc.
Andrews & Kurth L.L.P.
April 6, 1998
Page 3
options granted pursuant to the Plan; (e) the consideration
that ART will receive in connection with any particular
issuance of shares of Common Stock upon exercise of options
granted pursuant to the Plan will be (i) equivalent (or
approximately equivalent) in value to the value of the shares
being issued or (ii) adequate as a matter of fairness to ART
and its shareholders; (f) a holder of shares of Common Stock
issued upon exercise of an option granted pursuant to the Plan
will be immune from other types of liabilities, such as (i)
liability under any note or other evidence of indebtedness
issued by or other obligation undertaken by such holder in
connection with such exercise, or (ii) liability for
distributions in violation of Section 640 of the GBCC or under
the "piercing the corporate veil" theory; or (g) any past or
future authorization of shares of Common Stock, or any
particular issuance of shares of Common Stock, has not unfairly
diluted or will not unfairly dilute the investment value of
existing shareholders of ART. Our opinion assumes that each of
items (a) through (g) (other than item (e)(i)) is or will be
true.
D. This opinion letter is limited by, and is in accordance with,
the January 1, 1992 edition of the Interpretive Standards (the
"Interpretive Standards") Applicable to Legal Opinions to Third
Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State
Bar of Georgia, which Interpretive Standards are incorporated
in this opinion letter by this reference; in particular,
without limiting the generality of the foregoing, our opinion
is subject to the exceptions stated in paragraph 23(i) of the
Interpretive Standards, which makes exception for the effect of
bankruptcy and similar laws as described therein.
E. The opinion set forth herein is based solely upon the GBCC.
Nothing herein should be construed to express any opinion as to
the applicability or effect of any other law, be it a law of
any jurisdiction other than Georgia or a law of Georgia other
than the GBCC.
F. The opinion expressed herein is addressed exclusively to the
particular matters described herein, to the state of our
knowledge with respect thereto, to the state of all relevant
documents, including but not limited to ART's
<PAGE> 4
HOLT NEY ZATCOFF & WASSERMAN, LLP
American Realty Trust, Inc.
Andrews & Kurth L.L.P.
April 6, 1998
Page 4
Articles of Incorporation (as amended to the date hereof), and
to the state of the law applicable thereto, all as of the date
hereof. We assume no responsibility for commenting on any other
matters, or for updating this letter as of any subsequent date.
G. This opinion letter is being provided solely for the benefit of
its addressees, and no other person, natural or legal, shall be
entitled to rely hereon without the express written consent of
this firm. This opinion letter may not be referred to or quoted
from, in whole or in part, in any financial statement or other
document, nor may this opinion letter be filed with or
furnished to any person, natural or legal, other than its
addressees, including but not limited to any governmental
agency, in each case unless the prior written consent of this
firm has been obtained. Our consent is hereby given to the use
and filing of this opinion letter as an exhibit to ART's
Registration Statement on Form S-8 in respect of the
Registration, but in giving such consent we do not imply or
admit that we are an expert (within the meaning of the
Securities Act of 1933, as amended, or the rules and
regulations promulgated thereunder) with respect to any part of
such Registration Statement.
Yours very truly,
HOLT NEY ZATCOFF & WASSERMAN, LLP
By Michael G. Wasserman, P.C.
By: /s/ MICHAEL G. WASSERMAN
-----------------------
Michael G. Wasserman
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Certified Public Accountants
American Realty Trust, Inc.
Dallas, Texas
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-8 of our report
dated March 25, 1998, relating to the consolidated financial statements and
schedules of American Realty Trust, Inc. (the "Company") appearing in the
Company's Annual Report on Form 10-K for the year ended December 31, 1997.
/s/ BDO SEIDMAN, LLP
BDO Seidman, LLP
Dallas, Texas
April 3, 1998
<PAGE> 1
EXHIBIT 23.2
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-8 of our report
dated March 6, 1998, relating to the consolidated financial statements and
schedules of Continental Mortgage and Equity Trust (the "Trust") appearing in
the Trust's Annual Report on Form 10-K for the year ended December 31, 1997.
/s/ BDO SEIDMAN, LLP
BDO Seidman, LLP
Dallas, Texas
April 3, 1998
<PAGE> 1
EXHIBIT 23.3
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-8 of our report
dated March 6, 1998, relating to the consolidated financial statements and
schedules of Income Opportunity Realty Investors, Inc. (the "Company") appearing
in the Company's Annual Report on Form 10-K for the year ended December 31,
1997.
/s/ BDO SEIDMAN, LLP
BDO Seidman, LLP
Dallas, Texas
April 3, 1998
<PAGE> 1
EXHIBIT 23.4
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-8 of our report
dated March 12, 1998, relating to the consolidated financial statements and
schedules of Transcontinental Realty Investors, Inc. (the "Company") appearing
in the Company's Annual Report on Form 10-K for the year ended December 31,
1997.
/s/ BDO SEIDMAN, LLP
BDO Seidman, LLP
Dallas, Texas
April 3, 1998
<PAGE> 1
EXHIBIT 23.5
Consent of Independent Certified Public Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-8 of our report
dated March 17, 1998, relating to the consolidated financial statements and
schedules of National Realty, L.P. (the "Partnership") appearing in the
Partnership's Annual Report on Form 10-K for the year ended December 31, 1997.
/s/ BDO SEIDMAN, LLP
BDO Seidman, LLP
Dallas, Texas
April 3, 1998
