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 Registrant 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, including zip code, of Registrant's Principal Executive Offices)
CROWN AMERICAN ASSOCIATES 401(k)
RETIREMENT AND SAVINGS PLAN
(Full Title of the Plan)
Ronald P. Rusinak, Esquire
Crown American Realty Trust
Pasquerilla Plaza
Johnstown, Pennsylvania 15907
(814) 536-4441
(Name and address, including zip code and telephone number,
including area code, of agent for service)
Copy to:
John F. LeBlond, Esquire
Reed Smith Shaw & McClay LLP
435 Sixth Avenue
Pittsburgh, PA 15219
(412) 288-3090
CALCULATION OF REGISTRATION FEE
Proposed
Maximum Proposed
Title Of Offering Maximum
Securities Amount Price Aggregate Amount Of
To Be To Be Per Offering Registration
Registered1 Registered2 Share3 Price Fee
Common Shares of
Beneficial
Interest, par value 200,000
$.01 per share . . Shares $6.0315 $1,206,300 $318.46
1 Pursuant to Rule 416(c), this Registration Agreement also covers an
indeterminate amount of interests to be offered pursuant to the employee benefit
plan described herein.
2 Together with an indeterminate number of additional shares that may be
necessary to adjust the number of shares reserved for issuance under the Crown
American Associates 401(k) Retirement and Savings Plan as a result of any future
stock split, stock dividend or similar adjustment of the outstanding Common
Stock.
3 Estimated pursuant to Rules 457(h) and (c), solely for the purpose of
calculating the registration fee. The price per share is estimated to be
$6.0315 based on the average of the high and low sales price of the Common
Shares as reported on the New York Stock Exchange Composite transactions listing
for August 30, 2000 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 Crown American Realty Trust (the
"Company") with the Securities and Exchange Commission (File No. 1-12216) are
hereby incorporated in this Registration Statement by reference and made a part
of this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1999 filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(b) All other reports filed by the Company pursuant to Section 13(a)
of the Exchange 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 Shares of Beneficial
Interest set forth in the Company's Form 8-A filed July 27, 1993 and any
description of the Common Shares of Beneficial Interest which is contained
in a later registration statement filed by the Company pursuant to the
Exchange Act, including any amendment or report filed for the purpose of
updating such descriptions.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange 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 Trustees and Officers.
1. 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 the Company, 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 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, and
(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, as amended (the "Securities Act") 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 is 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 of the Company,
incorporated herein by reference to the Company's Registration
Statement on Form S-11 effective as of August 9, 1993.
4.2 Bylaws of the Company, incorporated herein by reference to the
Company's Registration Statement on Form S-11 effective as of
August 9, 1993.
23.1 Consent of Arthur Andersen LLP, independent public accountants,
filed herewith.
24.1 Power of Attorney, contained on the signature page to this
Registration Statement.
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 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; and
(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 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; 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) 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 herein, 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 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
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 trustee, 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.
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 Johnstown, Commonwealth of Pennsylvania, on the
1st day of September, 2000.
CROWN AMERICAN REALTY TRUST
By: /s/ Mark E. Pasquerilla
Mark E. Pasquerilla
Chief Executive Officer & President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Mark E. Pasquerilla 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 1st day of September, 2000.
Name Title
/s/ Mark E. Pasquerilla Trustee, Chairman of the Board, CEO and
Mark E. Pasquerilla President
/s/ Terry L. Stevens Trustee, Executive Vice President and
Terry L. Stevens Chief Financial Officer
/s/ Donato B. Zucco Trustee, Senior Vice President and
Donato B. Zucco Chief Administrative Officer
/s/ John A. Washko Vice President and Chief Accounting Officer
John A. Washko
/s/ Clifford A. Barton Trustee
Clifford A. Barton
/s/ Donald F. Mazziotti Trustee
Donald F. Mazziotti
/s/ Peter J. Siris Trustee
Peter J. Siris
/s/ Zachary L. Solomon Trustee
Zachary L. Solomon
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Johnstown, Pennsylvania, on the
1st day of September, 2000.
CROWN AMERICAN ASSOCIATES 401(k)
RETIREMENT AND SAVINGS PLAN
By:/s/William D. Brett
William D. Brett,
on behalf of the Plan Administrator
CROWN AMERICAN REALTY TRUST
Crown American Associates 401(k) Retirement and Savings Plan
REGISTRATION STATEMENT
ON FORM S-8
Exhibit Index
Exhibit Sequential
No. Document Page
4.1 Second Amended and Restated Declaration of Trust
of the Company, incorporated herein by reference
to the Company's Registration Statement on
Form S-11 effective as of August 9, 1993. ---
4.2 Bylaws of the Company, incorporated herein by
reference to the Company's Registration Statement
on Form S-11 effective as of August 9, 1993. ---
23.1 Consent of Arthur Andersen LLP, independent
public accountants, filed herewith. 9
24.1 Power of Attorney, contained on the signature
page to this Registration Statement. ---
No legal opinion with respect to the legality of the shares being registered is
being filed because no original issuance shares are sold under the Plan. The
Internal Revenue Service ("IRS") has previously determined that the Plan, as
amended, meets the requirements of Section 401 of the Internal Revenue Code.
The Company hereby undertakes that it will submit to the IRS in a timely manner
all amendments to the Plan since the most recent IRS favorable determination
letter, and that it will make all changes required by the IRS in order to
qualify the Plan under Section 401 of the Code.
EXHIBIT 23.1
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 15, 2000
included in Crown American Realty Trust's Form 10-K for the year ended
December 31, 1999, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Pittsburgh, PA
August 31, 2000
