AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 18, 1999
- --------------------------------------------------------------------------------
REGISTRATION NO. 333-___________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
CORNERSTONE REALTY INCOME TRUST, INC.
(Exact name of registrant as specified in its charter)
Virginia 54-1589139
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
306 East Main Street, Richmond, Virginia 23219
(Address of principal executive offices) (Zip Code)
APPLE RESIDENTIAL INCOME TRUST, INC.
1996 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
and
APPLE RESIDENTIAL INCOME TRUST, INC.
1996 INCENTIVE PLAN
Glade M. Knight
306 East Main Street
Richmond, Virginia 23219
(804) 643-1761
(Name, address and telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Title of Maximum Maximum
Securities to Amount to be Offering Aggregate Amount of
be Registered(1) Registered Price Per Share (2) Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Series A Convertible
Preferred 23,588.4 $25.00 $589,710.00 $163.94
Shares, no shares
par value
=====================================================================================================================
</TABLE>
- ----------------------
1/ This Registration Statement also relates to such additional number of shares
of the Registrant as may be issuable as a result of a stock dividend, stock
split, recapitalization or other similar event and such currently indeterminate
number of common shares as may be required for issuances upon conversion of the
preferred shares being registered hereunder.
2/ Estimated solely for purposes of determining the registration fee and based,
pursuant to Rule 457(a) under the Securities Act of 1933, on the per-share
liquidation value of the Series A Convertible Preferred Shares.
<PAGE>
Shares registered under this registration statement have been authorized for
issuance as follows:
1. An aggregate of up to 19,988.4 Series A Convertible Preferred Shares have
been authorized for issuance under the 1996 Non-Employee Directors Stock
Option Plan;
2. An aggregate of up to 3,600 Series A Convertible Preferred Shares have been
authorized for issuance under the 1996 Incentive Plan.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
Not required to be filed.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this registration
statement the following documents which have been filed with the Commission:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (including Amendment No. 1 thereto filed on Form 10-K/A);
(b) the following reports filed with the Commission pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which include all reports filed since the end of the fiscal year ended
December 31, 1998, including:
o Current Report on Form 8-K, filed January 29, 1998, relating to a
property acquisition.
o Current Report on Form 8-K/A, filed March 30, 1998, containing
financial statements relating to a property acquisition.
o Current Report on Form 8-K, filed June 12, 1998, relating to two
property acquisitions and containing financial statements relating
to the two property acquisitions.
o Current Report on Form 8-K, filed June 17, 1998, relating to a
property acquisition.
o Current Report on Form 8-K, filed July 17, 1998, relating to a
property acquisition.
o Current Report on Form 8-K/A, filed August 13, 1998, containing
financial statements relating to a property acquisition.
o Current Report on Form 8-K, filed August 26, 1998, relating to a
property acquisition.
2
<PAGE>
o Current Report on Form 8-K/A, filed September 14, 1998, containing
financial statements relating to a property acquisition.
o Current Report on Form 8-K, filed December 28, 1998, relating to a
property acquisition and containing financial statements relating
to the property acquisition.
o Quarterly Report on Form 10-Q for the three months ended March 31,
1999.
o Current Report on Form 8-K, filed April 5, 1999, relating to the
agreement for the merger of Apple Residential Income Trust into a
subsidiary of the Company.
o Current Report on Form 8-K, filed April 9, 1999, relating to
certain property acquisitions.
o Current Report on Form 8-K, filed August 6, 1999, relating to the
merger of Apple Residential Income Trust, Inc. into a subsidiary of
the Company.
o Current Report on Form 8-K, filed August 12, 1999, relating to the
amendment of certain loan documents.
o Quarterly Report on Form 10-Q for the three months ended June 30,
1999.
o Current Report on Form 8-K, filed October 13, 1999, relating to the
Company's announcement of a common share repurchase program and the
closing of a $73.5 million secured fixed-rate borrowing.
(c) the Company's Form S-4 Registration Statement filed May 7, 1999
(including Amendment No. 1 thereto on Form S-4/A) and the description of the
Company's Series A Convertible Preferred Shares (the "Preferred Shares")
appearing in the Company's Form S-4 Registration Statement filed on May 7, 1999;
(d) all documents subsequently filed by the Company 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 hereby
have been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be part hereof from the respective dates of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Virginia law and our Articles of Incorporation provide that our
directors and officers shall have no liability to the Company or its
shareholders in certain actions by or in the right of the Company unless such
officer or director has engaged in willful misconduct or a knowing violation of
the criminal law or of any federal or state securities laws. Generally,
claimants must look solely to the Company's property for satisfaction of claims
arising in connection with the affairs of the Company.
The Articles of Incorporation provide that the Company shall indemnify
any present or former director or officer against any expense or liability in an
action brought against such person if the directors (excluding the indemnified
party) determine in good faith that the director or officer was acting in good
faith within what he reasonably believed to be in the best interests of the
Company or its shareholders, and that the liability was not the result of
misconduct, bad faith, negligence, reckless disregard of duties or violation of
the criminal law. Indemnification is
3
<PAGE>
not allowed for any liability imposed by judgment, and associated costs,
including attorneys' fees, arising from or out of a violation of federal or
state securities laws unless (i) there has been a successful adjudication on the
merits of each count involving alleged securities law violations as to the
particular indemnitee, or (ii) such claims have been dismissed with prejudice on
the merits by a court of competent jurisdiction as to the particular indemnitee,
or (iii) a court of competent jurisdiction approves a settlement of the claims
against a particular indemnitee.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. CONSULTANTS
Not Applicable.
ITEM 9. EXHIBITS
Exhibit
Number Description
- ------ -----------
5 Opinion of McGuire, Woods, Battle & Boothe LLP as to the
legality of the securities being registered
24.1 Consent of McGuire, Woods, Battle & Boothe LLP (included as
part of Exhibit 5)
24.2 Consent of Ernst & Young LLP
24.3 Consent of Ernst & Young LLP
24.4 Consent of L.P. Martin & Company, P.C.
25 Powers of Attorney (included herein on signature pages)
99.1 Apple Residential Income Trust, Inc. 1996 Non-Employee
Directors Stock Option Plan (Incorporated by reference to
Exhibit 99 to the Registration Statement on Form S-8 of Apple
Residential Income Trust, Inc., as filed with the Securities
and Exchange Commission on September 30, 1998; File No.
333-64703)
99.2 Apple Residential Income Trust, Inc. 1996 Incentive Plan
(Incorporated by reference to Exhibit 99 to the Registration
Statement on Form S-8 of Apple Residential Income Trust, Inc.,
as filed with the Securities and Exchange Commission on
September 30, 1998; File No. 333-64701)
ITEM 10. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
4
<PAGE>
(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;
(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) 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 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 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 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 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.
SIGNATURES
Pursuant to the requirements of 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 Richmond, Commonwealth of Virginia, on October 18,
1999.
CORNERSTONE REALTY INCOME TRUST, Inc.
By: /s/ Stanley J. Olander, Jr.
---------------------------
Stanley J. Olander, Jr.
Chief Financial Officer
5
<PAGE>
POWER OF ATTORNEY
Know All Men and Women By These Presents that each individual whose
signature appears below constitutes and appoints Glade M. Knight and Stanley J.
Olander, Jr., and each of them, such individual's true and lawful
attorneys-in-fact and agents with full power of substitution, for such
individual and in his or her name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective amendments) to this
registration statement and any registration statement related to the offering
contemplated by this registration statement that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same,
with all exhibits thereto, and all 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 requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she 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 or her 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
dates indicated.
<TABLE>
<CAPTION>
Signature Capacities Date
<S> <C> <C>
/s/ Glade M. Knight Director, President and October 14 , 1999
- ------------------------------- Chief Executive Officer ---
Glade M. Knight
/s/ Stanley J. Olander, Jr Director, Executive Vice President, October 14 , 1999
- ------------------------------- Secretary and Chief ---
Stanley J. Olander, Jr. Financial Officer
/s/ Glenn W. Bunting, Jr Director October 15 , 1999
- ------------------------------- ---
Glenn W. Bunting, Jr.
/s/ Leslie A. Grandis Director October 13 , 1999
- ------------------------------- ---
Leslie A. Grandis
/s/ Penelope W. Kyle Director October 14 , 1999
- ------------------------------- ---
Penelope W. Kyle
/s/ Harry S. Taubenfeld Director October 15 , 1999
- ------------------------------- ---
Harry S. Taubenfeld
/s/ Martin Zuckerbrod Director October 13 , 1999
- ------------------------------- ---
Martin Zuckerbrod
</TABLE>
6
EXHIBIT 5
October 18, 1999
Board of Directors
Cornerstone Realty Income Trust, Inc.
306 East Main Street
Richmond, Virginia 23219
Ladies and Gentlemen:
We have acted as counsel to Cornerstone Realty Income Trust, Inc. (the
"Company"), a Virginia corporation, in connection with the preparation of the
registration statement on Form S-8, pertaining to the Apple Residential Income
Trust, Inc. 1996 Non-Employee Directors Stock Option Plan and the Apple
Residential Income Trust, Inc. 1996 Incentive Plan, to which this opinion is an
exhibit (the "Registration Statement"), which is being filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the
"Act"), for the registration under the Act of the Preferred Shares of the
Company described in such Registration Statement. Terms not otherwise defined
herein shall have the meanings assigned to them in the Registration Statement.
We have reviewed originals or copies of (i) the Amended and Restated
Articles of Incorporation (as amended), Bylaws and other corporate documents of
the Company, (ii) certain resolutions of the Board of Directors of the Company,
and (iii) the Registration Statement. In addition, we have reviewed such other
documents and have made such legal and factual inquiries as we have deemed
necessary or advisable for purposes of rendering the opinions set forth below.
Based on and subject to the foregoing we are of the opinion that:
(1) The Company is duly organized and validly existing under the laws
of the Commonwealth of Virginia; and
(2) The Preferred Shares registered under the Registration Statement
have been duly authorized and, when issued and paid for as
described in the Registration Statement, will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are in
the category of persons whose consent is required by Section 7 of the Act or the
rules and regulations promulgated thereunder by the Securities and Exchange
Commission.
Very truly yours,
/s/ McGuire, Woods, Battle & Boothe LLP
EXHIBIT 24.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the 1996 Non-Employee Directors Stock Option
Plan and 1996 Incentive Plan of Apple Residential Income Trust, Inc. of our
report dated January 25, 1999, with respect to the consolidated financial
statements and schedule of Cornerstone Realty Income Trust, Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
-----------------------
Ernst & Young LLP
Richmond, Virginia
October 14, 1999
EXHIBIT 24.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-00000) pertaining to the 1996 Non-Employee Directors Stock Option
Plan and 1996 Incentive Plan of Apple Residential Income Trust, Inc. of our
report dated February 4, 1999, with respect to the consolidated financial
statements and schedule of Apple Residential Income Trust, Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
-----------------------
Ernst & Young LLP
Richmond, Virginia
October 14, 1999
EXHIBIT 24.4
L. P. MARTIN & COMPANY, P.C.
4132 INNSLAKE DRIVE
GLEN ALLEN, VIRGINIA 23060
PHONE: 804-346-2626
FAX: 804-346-9311
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Cornerstone Realty Income Trust, Inc.
306 East Main Street
Richmond, Virginia 23219
We hereby consent to the incorporation by reference of the following reports
prepared by us in a Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission by Cornerstone Realty Income Trust, Inc.:
The following reports pertaining to properties acquired by Cornerstone
Realty Inome Trust, Inc.: (1) our report dated February 5, 1998 with respect to
the statement of income and direct operating expenses exclusive of items not
comparable to the proposed future operations of the property Sterling Point
Apartments for the twelve-month period ended December 31, 1997, (2) our report
dated April 8, 1998 with respect to the statement of income and direct operating
expenses exclusive of items not comparable to the proposed future operations of
the property Hampton Pointe Apartments for the twelve-month period ended
February 28, 1998, (3) our report dated April 8, 1998 with respect to the
statement of income and direct operating expenses exclusive of items not
comparable to the proposed future operations of the property Edgewood Knoll
Apartments for the twelve-month period ended February 28, 1998, (4) our report
dated June 25, 1998 with respect to the statement of income and direct operating
expenses exclusive of items not comparable to the proposed future operations of
the property The Timbers Apartments for the twelve-month period ended April 30,
1998, (5) our report dated August 6, 1998 with respect to the statement of
income and direct operating expenses exclusive of items not comparable to the
proposed future operations of the property The Gables Apartments for the
twelve-month period ended May 31, 1998, and (6) our report dated November 5,
1998 with respect to the statement of income and direct operating expenses
exclusive of items not comparable to the proposed future operations of the
property Cape Landing Apartments for the twelve-month period ended September 30,
1998.
The following reports pertaining to properties acquired by Apple
Residential Income Trust, Inc.: (1) our report dated March 25, 1998 with respect
to the statement of income and direct operating expenses exclusive of items not
comparable to the proposed future operations of the property Main Park
Apartments for the twelve-month period ended December 31, 1997, (2) our report
dated April 6, 1998 with respect to the statement of income and direct operating
expenses exclusive of items not comparable to the proposed future operations of
the property Timberglen Apartments for the twelve-month period ended December
31, 1997, (3) our report dated April 14, 1998 with respect to the statement of
income and direct operating expenses exclusive of items not comparable to the
proposed future operations of the property Copper Ridge Apartments for the
twelve-month period ended February 28, 1998, (4) our report dated May 14, 1998
with respect to the statement of income and direct operating expenses exclusive
of items not comparable to the proposed future operations of the property Bitter
Creek Apartments for the twelve-month period ended March 31, 1998, (5) our
report dated July 16, 1998 with respect to the statement of income and direct
operating expenses exclusive of items not comparable to the proposed future
operations of the property Summer Tree Apartments for the twelve-month period
ended May 31, 1998, (6) our report dated July 17, 1998 with respect to the
statement of income and direct operating expenses exclusive of items not
comparable to the proposed future operations of the property Park Village
Apartments for the twelve-month period ended May 31, 1998, (7) our report dated
July 21, 1998 with respect to the statement of income and direct operating
expenses exclusive of items not comparable to the proposed future operations of
the property Cottonwood
<PAGE>
Crossing Apartments for the twelve-month period ended May 31, 1998, (8) our
report dated May 14, 1998 with respect to the statement of income and direct
operating expenses exclusive of items not comparable to the proposed future
operations of the property Pace's Point Apartments for the twelve-month period
ended March 31, 1998, (9) our report dated May 14, 1998 with respect to the
statement of income and direct operating expenses exclusive of items not
comparable to the proposed future operations of the property Pepper Square
Apartments for the twelve-month period ended March 31, 1998, (10) our report
dated May 14, 1998 with respect to the statement of income and direct operating
expenses exclusive of items not comparable to the proposed future operations of
the property Emerald Oaks Apartments for the twelve-month period ended March 31,
1998, (11) our report dated May 14, 1998 with respect to the statement of income
and direct operating expenses exclusive of items not comparable to the proposed
future operations of the property Hayden's Crossing Apartments for the
twelve-month period ended March 31, 1998, (12) our report dated May 14, 1998
with respect to the statement of income and direct operating expenses exclusive
of items not comparable to the proposed future operations of the property
Newport Apartments for the twelve-month period ended March 31, 1998, (13) our
report dated July 15, 1998 with respect to the statement of income and direct
operating expenses exclusive of items not comparable to the proposed future
operations of the property Estrada Oaks Apartments for the twelve-month period
ended June 30, 1998, (14) our report dated December 22, 1998 with respect to the
statement of income and direct operating expenses exclusive of items not
comparable to the proposed future operations of the property Burney Oaks
Apartments for the twelve-month period ended September 30, 1998, (15) our report
dated November 23, 1998 with respect to the statement of income and direct
operating expenses exclusive of items not comparable to the proposed future
operations of the property Brandywine Park Apartments for the twelve-month
period ended September 30, 1998, (16) our report dated January 21, 1999 with
respect to the statement of income and direct operating expenses exclusive of
items not comparable to the proposed future operations of the property The
Courts on Pear Ridge Apartments for the twelve-month period ended October 31,
1998, (17) our report dated January 22, 1999 with respect to the statement of
income and direct operating expenses exclusive of items not comparable to the
proposed future operations of the property Sierra Ridge Apartments for the
twelve-month period dated December 15, 1998 and (18) our report dated February
23, 1999 with respect to the statement of income and direct operating expenses
not comparable to the proposed future operations of the property Grayson Square
Apartments for the twelve-month period ended December 31, 1998.
/s/ L.P. Martin & Co., P.C.
Richmond, Virginia
October 14, 1999
