Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
under
The Securities Act of 1933
ARBOR PROPERTY TRUST
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(Exact name of registrant as specified in its charter)
Delaware 23-2740383
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(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
Suite 800, One Tower Bridge, W. Conshohocken, PA 19428
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(Address of principal executive offices) (Zip Code)
Arbor Property Trust
Incentive Share Plan
(Full title of the Plan)
Myles H. Tanenbaum
President
Arbor Property Trust
Suite 800
One Tower Bridge
W. Conshohocken, Pennsylvania 19428
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(Name and address of agent for service)
(610) 941-2933
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(Telephone number, including area code, of agent for service)
Copies to:
Jason M. Shargel, Esquire
Wolf, Block, Schorr and Solis-Cohen
Twelfth Floor Packard Building
S.E. Corner 15th and Chestnut Streets
Philadelphia, PA 19102
(215) 977-2000
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price Fee
---------------- ------------- -------------- -------------- ------------
<S> <C> <C> <C> <C>
Common Shares
of Beneficial 100,000 $8.00 $800,000 $275.86
Interest, without shares
par value
</TABLE>
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended,
this Registration Statement also covers such additional securities as
may hereafter be offered or issued to prevent dilution resulting from
stock splits, stock dividends, recapitalizations or certain other
capital adjustments.
(2) Estimated solely for the purpose of calculating the registration fee
in accordance with Rules 457(c) and 457(h)(1) under the Securities Act
of 1933, as amended, based on the average of the high and low prices
for the Common Stock as quoted on the New York Stock Exchange on
September 20, 1996.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Arbor Property Trust, a Delaware
business trust (the "Registrant" or the "Company"), with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are incorporated by reference in this Registration
Statement:
1. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995.
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996 and June 30, 1996.
3. The description of the Registrant's common shares of beneficial
interest, without par value (the "Common Shares"), contained in the Registrant's
Registration Statement on Form 8-A filed on October 8, 1993 under Section 12 of
the Exchange Act, including all amendments or reports filed for the purpose of
updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration
Statement that indicates that all securities offered hereby have been sold or
that 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 any such document.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
which also is incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 3817 of the Delaware Code, as amended, the Registrant has
the power to indemnify and hold harmless any trustee or beneficial owner from
and against any and all claims and demands whatsoever.
Pursuant to Article VII of the Company's Amended and Restated
Declaration of Trust, the trustees of the Company, when acting in such capacity,
shall not be personally liable to any person other than the Company or any
shareholder therein for any act, omission or obligation of the Company or any
trustee. The trustees shall be entitled to the benefits of all limitations on
the liability of trustees of a business trust to the trust or any shareholder
therein that are now or hereafter become available under the Delaware Code for
monetary damages for breach of any duty (including, without limitation,
fiduciary duty) as a trustee, except for liability (i) for acts or omissions
which involve actual fraud or willful misconduct or (ii) for any transaction
from which the trustee derived improper personal benefit. Neither the amendment
nor repeal of said Article VII, nor the adoption or amendment of any other
provision of the Amended and Restated Declaration of Trust inconsistent with
such Article, shall apply to or affect in any respect the applicability of the
preceding sentence with respect to any act or failure to act which occurred
prior to such amendment, repeal or adoption.
Further pursuant to Article VII of the Company's Amended and Restated
Declaration of Trust, neither the trustees nor the officers of the Company shall
be liable under any written instrument creating an obligation of the Company,
and all persons shall look solely to the Company's property for the payment of
any claim under or for the performance of that instrument. All such written
instruments shall contain an express exculpatory clause to the foregoing effect.
In addition, the Company shall indemnify and hold harmless each trustee
and officer of the Company (including any persons who, while a trustee or
officer of the Company, is or was serving at the request of the Company as a
director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust, other enterprise or
employee benefit plan) to the maximum extent permitted by law, except to the
extent that the indemnitee is found liable for (i) an act or omission involving
actual fraud or willful misconduct or (ii) a transaction in which the indemnitee
received an improper personal benefit.
Article XII of the Company's by-laws requires that each trustee (and
each officer, director, employee, agent or stockholder of the resident trustee)
and officer of the Company who was or is a party to, or is threatened to be
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made a party to, or is otherwise involved in any threatened, pending or
completed action, suit or proceeding (including without limitation an action,
suit or proceeding by or in the right of the Company), whether civil, criminal,
administrative, investigative or through arbitration (collectively, a
"Proceeding"), by reason of the fact that he or she is or was a trustee (or an
officer, director, employee, agent, or stockholder of the resident trustee) or
officer of the Company or is or was serving in any capacity at the request or
for the benefit of the Company as a trustee, or in any other capacity for, any
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise (such person shall be referred to as an "Indemnitee") be indemnified
and held harmless by the Company for all actions taken by him or her and for all
failures to take action (regardless of the date of any such action or failure to
take action and regardless of whether such action or failure to take action
results from such Indemnitee's negligence or gross negligence) to the maximum
extent permitted by law against all expense, liability and loss (including
without limitation attorneys fees, judgments, fines, taxes, penalties, and
amounts paid or to be paid in settlement) reasonably incurred or suffered by
such Indemnitee in connection with any Proceeding. No indemnification pursuant
to said Article XII shall be made, however, in any case where the act or failure
to act giving rise to the claim for indemnification is determined by a court to
have constituted (i) actual fraud or willful misconduct or (ii) a transaction in
which such person received an improper personal benefit.
The right to indemnification provided in said Article XII shall include
the right to have the expenses incurred by the Indemnitee in defending any
Proceeding paid by the Company in advance of the final disposition of the
Proceeding to the fullest extent permitted by Delaware law; provided that, if
Delaware law or the trustees so require, the payment of such expenses incurred
by the Indemnitee in advance of the final disposition of a Proceeding shall be
made only upon delivery to the Company of an undertaking, by or on behalf of the
Indemnitee, to repay all amounts so advanced without interest if it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
under Article XII or otherwise. Furthermore, indemnification pursuant to Article
XII shall continue as to an Indemnitee who has ceased to be a trustee or officer
and shall inure to the benefit of his or her heirs, executors and
administrators.
The rights to indemnification and to the advancement of expenses
provided in said Article XII shall not be exclusive of any other rights that any
person may have or hereafter acquire under any statute, provision of the
Company's Amended and Restated Declaration of Trust, its By-laws, or any
agreement, vote of shareholders or managing trustees, or otherwise.
Article XII of the Company's By-laws provides further that the Company
may purchase and maintain insurance, at its expense, for the benefit of any
person on behalf of whom insurance is permitted to be purchased by Delaware law
against any expense, liability or loss, whether or not the Company would have
the power to indemnify such person under Delaware or other law. The Company may
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also purchase and maintain insurance to insure its indemnification obligations
whether arising hereunder or otherwise. In addition, the Company may create a
fund of any nature, which may, but need not, be under the control of a trustee,
or otherwise may secure in any manner its indemnification obligations, whether
arising hereunder, under the Company's Amended and Restated Declaration of
Trust, its By-laws, or any agreement, vote of shareholders or managing trustees,
or otherwise.
Further, Article XII of the Company's By-laws provides that the
provisions of said Article XII and of the Amended and Restated Declaration of
Trust relating to the limitation of trustees' liability, to indemnification and
to the advancement of expenses shall constitute a contract between the Company
and each of its trustees and officers which may be modified as to any trustee or
officer only with that person's consent or as specifically provided in said
Article XII, and that notwithstanding any other provision of the Company's
By-laws relating to their amendment generally, any repeal or amendment of the
Amended and Restated Declaration of Trust or said Article XII that is adverse to
any trustee or officer shall apply to such trustee or office only on a
prospective basis, and shall not reduce any limitation on the personal liability
of a trustee, or limit the rights of an Indemnitee to indemnification or to the
advancement of expenses with respect to any action or failure to act occurring
prior to the time of such repeal or amendment. Furthermore, notwithstanding any
other provision of said By-laws, no repeal or amendment of said By-laws and of
the Amended and Restated Declaration of Trust shall affect any or all of said
Article XII and of the Amended and Restated Declaration of Trust so as either to
reduce the limitation of trustees' liability or limit indemnification or the
advancement of expenses in any manner unless adopted by (a) the majority vote of
the trustees of the Company then serving, or (b) the affirmative vote of
shareholders of the Company entitled to cast not less than a majority of the
votes that such shareholders are entitled to cast in the election of trustees,
provided that no such amendment shall have retroactive effect inconsistent with
the preceding sentence.
Finally, Article XII of the Company's By-laws provides that references
in said Article XII to Delaware law or to any provision thereof shall be to such
law as it existed on the date on which said Article XII was adopted or as such
law thereafter may be changed; provided, that, in the case of any change which
expands the liability of trustees or limits the indemnification rights or the
rights to advancement of expenses which the Company may provide, the rights to
limited liability, to indemnification and to the advancement of expenses
provided in said Article XII and in the Amended and Restated Declaration of
Trust shall continue as theretofore to the extent permitted by law.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following Exhibits are filed as part of this Registration
Statement:
Exhibit No.
4 Arbor Property Trust Incentive Share Plan
(incorporated by reference to exhibit to the
Registrant's Annual Report on Form 10-K for
the year ended December 31, 1993).
5 Opinion of Wolf, Block, Schorr and Solis-Cohen.
23.1 Consent of Arthur Andersen LLP, independent public
accountants.
23.2 Consent of Wolf, Block, Schorr and Solis-Cohen
(contained in Exhibit 5).
23.3 Consent of Deloitte & Touche LLP, independent
auditors.
24 Power of Attorney (included on signature page in Part II
of the 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 of 1933, as amended (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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
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maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 15(d) of the Securities
Exchange Act of 1934, as amended (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) 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 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 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 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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SIGNATURES AND POWER OF ATTORNEY
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 W. Conshohocken, Pennsylvania, on this 24th day of
September, 1996.
ARBOR PROPERTY TRUST
By: /s/ MYLES H. TANENBAUM
---------------------------------
Myles H. Tanenbaum
President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Myles H. Tanenbaum and Kimli Cross Smith,
and each of them, the undersigned's true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for the undersigned
and in the undersigned's name, place and stead, in any and all capacities, to
sign any and all amendments to this Registration Statement (including, without
limitation, 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
attorneys-in-fact and agents 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 the undersigned 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 substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933 as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ MYLES H. TANENBAUM Managing Trustee and President September 24, 1996
- ---------------------- (principal executive and financial
Myles H. Tanenbaum officer)
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/s/ KIMLI CROSS SMITH Managing Trustee and Executive September 24, 1996
- -------------------------- Vice President/Chief Operating
Kimli Cross Smith Officer
/s/ PHILLIP E. STEPHENS Managing Trustee September 24, 1996
- --------------------------
Phillip E. Stephens
/s/ SYLVAN M. COHEN Managing Trustee September 25, 1996
- --------------------------
Sylvan M. Cohen
/s/ ALTON G. MARSHALL Managing Trustee September 25, 1996
- --------------------------
Alton G. Marshall
/s/ GEORGE R. PEACOCK Managing Trustee September 25, 1996
- --------------------------
George R. Peacock
/s/ DENNIS HARKINS Treasurer and Controller (principal September 25, 1996
- -------------------------- accounting officer)
Dennis Harkins
</TABLE>
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<PAGE>
ARBOR PROPERTY TRUST
INCENTIVE SHARE PLAN
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
Exhibit No. Document
- ----------- --------
4 Arbor Property Trust Incentive Share Plan (incorporated
by reference to exhibit to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1993).
5 Opinion of Wolf, Block, Schorr and Solis-Cohen.
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of Wolf, Block, Schorr and Solis-Cohen
(contained in Exhibit 5).
23.3 Consent of Deloitte & Touche LLP, independent auditors.
24 Power of Attorney (included on signature page in
Part II of the Registration Statement).
[ LETTERHEAD OF COUNSEL ]
September 26, 1996
Arbor Property Trust
Suite 800
One Tower Bridge
W. Conshohocken, PA 19428
RE: Arbor Property Trust
Registration Statement on Form S-8
Gentlemen:
As counsel to Arbor Property Trust, a Delaware business trust (the
"Company"), we have assisted in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, relating to
100,000 of the Company's common shares of beneficial interest, without par
value (the "Common Shares"), that may be issued under the Company's Incentive
Share Plan (the "Plan").
In this connection, we have examined the Company's Certificate of Trust,
Amended and Restated Declaration of Trust and Bylaws, the Plan and such other
documents and corporate records relating to the Company and the issuances of the
Common Shares as we have deemed appropriate. In all examinations of documents,
instruments and other papers, we have assumed the genuineness of all signatures
on original and certified documents and the conformity with original and
certified documents of all copies submitted to us as conformed, photostatic or
other copies. As to matters of fact which have not been independently
established, we have relied upon representations of officers of the Company.
Based upon the foregoing, it is our opinion that the Common Shares offered
and to be offered under the Plan are duly authorized and, when issued and sold
pursuant to the terms of the Plan, will be legally issued, fully paid and
non-assessable.
We hereby expressly consent to the inclusion of this opinion as an exhibit
to the Registration Statement. In giving this consent, we do not hereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations thereunder.
Very truly yours,
WOLF, BLOCK, SCHORR and SOLIS-COHEN
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Arbor Property Trust:
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8, of our report dated
March 15, 1996, included in Arbor Property Trust's annual report on Form 10-K
for the fiscal year ended December 31, 1995, and to all references to our firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Philadelphia, PA
September 26, 1996
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Arbor Property Trust on Form S-8 of our report dated March 10, 1994, appearing
in the Annual Report on Form 10-K of Arbor Property Trust for the year ended
December 31, 1995.
DELOITTE & TOUCHE LLP
Atlanta, Georgia
September 26, 1996
