Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CROWN AMERICAN REALTY TRUST
(Exact name of issuer as specified in its charter)
Maryland 25-1713733
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Pasquerilla Plaza
Johnstown, Pennsylvania 15901
(Address of Principal Executive Offices) (Zip Code)
1993 TRUSTEES' OPTION PLAN
(Full title of the plan)
John M. Kriak
Executive Vice President and Chief Financial Officer
Crown American Realty Trust
Pasquerilla Plaza
Johnstown, Pennsylvania 15901
(Name and address of agent for service)
(814) 536-4441
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
securities Amount maximum maximum Amount
to be to be offering aggregate of
registered registered price per offering registration
share price fee
Common 2,000 $17.25 $34,500
Shares of 2,000 $14.74 $29,480
Beneficial 2,000 $13.50 $27,000
Interest, 2,000 $7.88 $15,760
par value 2,000 $7.50 $15,000
$.01 per 20,000 $9.31 $186,200
share 95,000 $9.937* $944,015*
125,000 $1,251,955 $369.33*
*Estimated solely for the purpose of calculating the registration fee. Pursuant
to Rules 457(h) and (c), the proposed maximum aggregate offering price for these
shares which may be issued under the 1993 Trustees' Option Plan is based on the
average of the high and low sales prices of the Common Shares as reported on the
New York Stock Exchange Composite transactions listing for April 29, 1998 as
quoted in The Wall Street Journal.
PART II
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission
(File No. 1-12216) are incorporated in this Registration Statement by reference
and made a part of this Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as amended (the "1934
Act");
(b) All other reports filed by the Company pursuant to Section 13(a)
of the 1934 Act since the end of the fiscal year covered by the annual
report on Form 10-K referred to above; and
(c) The description of the Company's Common Stock set forth in the
Company's Form 8-A filed July 27, 1993 and any description of the Common
Stock which is contained in a later registration statement filed by the
Company pursuant to the 1934 Act, including any amendment or report filed
for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act on or subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby 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 the date of filing
of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
contemporaneously or subsequently filed document which also is or is deemed to
be incorporated by reference in this Registration Statement 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 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Title 8 of the Corporations and Associations Article of the Annotated Code
of Maryland, as amended (the "Maryland REIT Law") permits a Maryland real estate
investment trust to include in its Declaration of Trust and Bylaws a provision
limiting the liability of its trustees and officers to the trust and its
shareholders for money damages except for liability resulting from (a) actual
receipt of an improper benefit or profit in money, property or services or
(b) active and deliberate dishonesty established by a final judgment as being
material to the cause of action. The Second Amended and Restated Declaration of
Trust of the Company (the "Declaration of Trust") contains such a provision
which eliminates such liability to the maximum extent permitted by the Maryland
REIT Law.
The Declaration of Trust requires it, to the maximum extent permitted by
Maryland law, to indemnify (a) any Trustee, officer or shareholder who has been
successful, on the merits or otherwise, in the defense of a proceeding to which
he was made a party by reason of his service in that capacity, against
reasonable expenses incurred by him in connection with the proceeding and (b)
any present or former Trustee or officer against any claim or liability unless
it is established that (i) his act or omission was committed in bad faith or was
the result of active and deliberate dishonesty, (ii) he actually received an
improper personal benefit in money, property or services or (iii) in the case of
a criminal proceeding, he had reasonable cause to believe that his act or
omission was unlawful. The Bylaws also (i) permit the Company to provide
indemnification and advance of expenses to a present or former Trustee or
officer who served a predecessor of the Company in such capacity, and to any
employee or agent of the Company or a predecessor of the Company, (ii) provide
that any indemnification or payment or reimbursement of the expenses permitted
by the Bylaws shall be furnished in accordance with the procedures provided for
indemnification and payment or reimbursement of expenses under Section 2-418 of
the Maryland General Corporation Law, as amended from time to time ("MGCL") for
directors of Maryland corporations and permit the Company to provide such other
and further indemnification or payment or reimbursement of expenses as may be
permitted by the MGCL for directors of Maryland corporations. Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to Trustees and officers of the Company pursuant to the foregoing
provisions or otherwise, the Company has been advised that, although the
validity and scope of the governing statute has not been tested in court in the
opinion of the SEC, such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In addition,
indemnification may be limited by state securities laws.
The Maryland REIT Law permits a Maryland real estate investment trust to
indemnify and advance expenses to its trustees, officers, employees and agents
to the same extent as its permitted by the MGCL for directors and officers of
Maryland corporations. The MGCL permits a 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 trustee 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 trustee 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. In accordance with the MGCL, the Bylaws of the Company require it,
as a condition to advancing expenses, to obtain (a) a written affirmation by the
Trustee or officer of his good faith belief that he has met the applicable
standard of conduct necessary for indemnification by the Company as authorized
by the Bylaws and (b) a written statement by or on his behalf to repay the
amount paid or reimbursed by the Company if it shall ultimately be determined
that the standard of conduct was not met.
The Company maintains trustee and officer liability insurance covering its
trustees and officers with respect to certain liabilities which they may incur
in connection with their serving as such.
The Company has entered into indemnification agreements with each of its
trustees and executive officers. The indemnification agreements require, among
other things, that the Company indemnify its trustees and executive officers to
the fullest extent permitted by law and advance to the trustees and executive
officers all related expenses, subject to reimbursement if it is subsequently
determined that indemnification is not permitted.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
No.
4.1 Second Amended and Restated Declaration of Trust.*
4.2 Bylaws of the Company.*
5.1 Opinion of Reed Smith Shaw & McClay LLP as to the legality of the
Common Shares, filed herewith.
23.1 Consent of Reed Smith Shaw & McClay LLP (included in Exhibit 5.1
filed herewith).
23.2 Consent of Arthur Andersen LLP, filed herewith.
24.1 Power of Attorney, contained on the signature page to this
Registration Statement.
* Incorporated herein by reference to the Company's Registration Statement on
Form S-11 effective as of August 9, 1993.
Item 9. Undertakings.
(a) Rule 415 offering.
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 of 1933;
(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 (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) Filings incorporating subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "1933 Act") may be permitted to trustees, 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 1933 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 trustee, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such trustee, 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 1933 Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Johnstown, Pennsylvania, on the 29 day of April, 1998.
CROWN AMERICAN REALTY TRUST
By /s/ Frank J. Pasquerilla
Frank J. Pasquerilla, Chairman of the Board of
Trustees and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints John M. Kriak his true and lawful
attorney-in-fact and agent, 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, 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, as fully 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, 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 indicated on the 29 day of April, 1998.
Name Title
/s/ Frank J. Pasquerilla Chairman of the Board of
Frank J. Pasquerilla Trustees and Chief Executive
Officer (Principal Executive
Officer)
/s/ Mark Pasquerilla President and Trustee
Mark Pasquerilla
/s/ John M. Kriak Executive Vice President, Chief
John M. Kriak Financial Officer (Principal
Financial Officer) and Trustee
/s/ Terry L. Stevens Senior Vice President - Finance
Terry L. Stevens and Chief Accounting Officer
(Principal Accounting Officer)
/s/ Clifford A. Barton Trustee
Clifford A. Barton
/s/ Donald F. Mazziotti Trustee
Donald F. Mazziotti
Trustee
Margaret T. Monaco
/s/ Zachary L. Solomon Trustee
Zachary L. Solomon
CROWN AMERICAN REALTY TRUST
1993 Trustees' Option Plan
REGISTRATION STATEMENT
ON FORM S-8
Exhibit Index
Exhibit No. Document Sequential
Page
4.1 Second Amended and Restated *
Declaration of Trust.
4.2 Bylaws of the Company. *
5.1 Opinion of Reed Smith Shaw & McClay
LLP as to the legality of the Common
Shares, filed herewith.
23.1 Consent of Reed Smith Shaw & McClay
LLP (included in Exhibit 5.1 filed
herewith).
23.2 Consent of Arthur Andersen LLP, filed
herewith.
24.1 Power of Attorney, contained on the 5
signature page to this Registration
Statement.
* Incorporated herein by reference to the Company's Registration Statement on
Form S-11 effective as of August 9, 1993.
EXHIBIT 5.1
April 29, 1998
Crown American Realty Trust
Pasquerilla Plaza
Johnstown, Pennsylvania 15901
Ladies and Gentlemen:
We have acted as counsel to Crown American Realty Trust (the
"Company") in connection with the Registration Statement (the "Registration
Statement") relating to up to 125,000 Common Shares, par value $.01 per share,
of the Company (the "Common Shares") which may be issued or delivered to non-
employee trustees of the Company under the Company's 1993 Trustees' Option Plan,
as amended and restated (the "Plan"). In rendering our opinion below, we have
assumed that any Common Shares which have been reacquired and are then delivered
under the Plan will have been duly authorized, validly issued and fully paid at
the time of their original issuance.
In connection with this opinion, we have examined, among other things:
(1) the Second Amended and Restated Declaration of Trust of the
Company, as amended to date;
(2) the Bylaws of the Company;
(3) written consent by the Board of Trustees of the Company dated as
of December 30, 1997 adopting the Plan;
(4) resolutions adopted by the Board of Trustees of the Company on
February 25, 1998 approving the filing of the Registration Statement; and
(5) the Plan, as currently in effect.
Based upon the foregoing and upon an examination of such other
documents, corporate proceedings, statutes, decisions and questions of law as we
considered necessary in order to enable us to furnish this opinion, and subject
to the assumptions set forth above, we are pleased to advise you that in our
opinion:
(a) The Company has been duly organized and is a validly existing
real estate investment trust under the laws of the State of Maryland; and
(b) The Common Shares being registered and which may be issued or
delivered by the Company pursuant to the provisions of the Plan have been
duly authorized, and upon such issuance in accordance with the provisions
of the Plan such shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of our name in the Prospectus under the
caption "Legal Opinion".
Yours truly,
/s/ Reed Smith Shaw & McClay LLP
PDG, Jr./DLD/DLM
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 25, 1998
included in Crown American Realty Trust's Form 10-K for the year ended
December 31, 1997, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Pittsburgh, PA
April 29, 1998
