Securities Registration: Employee Benefit Plan (s-8)
14 Luglio 2014 - 12:00PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on July 11, 2014
Registration No. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_________________________
FORM S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
____________________________
AMERICAN REALTY CAPITAL
HEALTHCARE TRUST, INC.
(Exact Name of Registrant as Specified in
Its Charter)
|
Maryland
(State or Other Jurisdiction of
Incorporation or Organization)
405 Park Avenue
New York, New York
|
27-3306391
(I.R.S. Employer Identification No.)
10022
|
|
(Address of Principal Executive Offices)
|
(Zip Code)
|
_____________________________
Employee and Director Incentive Restricted
Share Plan
of American Realty Capital Healthcare Trust, Inc.
(Full Title of the Plan)
_____________________________
|
Thomas
P. D’Arcy
Chief
Executive Officer
American
Realty Capital Healthcare Trust, Inc.
405
Park Avenue
New
York, New York 10022
(Name and Address of Agent for Service)
(212)
415-6500
(Telephone Number, Including Area Code,
of Agent For Service)
|
|
With copies to:
|
|
Peter
M. Fass, Esq.
Proskauer
Rose LLP
Eleven
Times Square
New
York, New York 10036
Tel:
(212) 969-3000
Fax:
(212) 969-2900
|
Michael
J. Choate, Esq.
Proskauer
Rose LLP
Three
First National Plaza
70
West Madison
Chicago,
Illinois 60602-4342
Tel:
(312) 962-3567
Fax:
(312) 962-3551
|
_____________________________
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions
of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2
of the Exchange Act.
|
Large accelerated filer
¨
|
Accelerated filer
¨
|
|
Non-accelerated filer
x
(Do not check if a smaller reporting company)
|
Smaller reporting company
¨
|
_____________________________
CALCULATION OF REGISTRATION FEE
|
Title Of Securities
To Be Registered
|
Amount To Be
Registered
(1)
|
Proposed Maximum
Offering Price
Per Share
(2)
|
Proposed Maximum
Aggregate
Offering
Price
(2)
|
Amount
Of
Registration Fee
|
|
Common Stock, par value $0.01 per share
|
225,905
|
$
10.73
|
$
2,423,961
|
$
313
|
|
|
(1)
|
This Registration Statement covers 225,905 shares of the common stock, par value $0.01 per share
(the “Common Stock”) of American Realty Capital Healthcare Trust, Inc. (the “Registrant”) under the Employee and Director Incentive Restricted Share Plan of American Realty Capital Healthcare Trust, Inc. (the
“Plan”). Further, this Registration Statement registers such additional shares of Common Stock as may be offered or
issued under the Plan to prevent dilution resulting from stock splits, stock dividends or similar transactions that results in
an increase in the number of the outstanding shares of Common Stock or shares issuable pursuant to awards granted under the Plan.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration
Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plan.
|
|
|
(2)
|
Calculated solely for purposes of this offering in accordance with Rules 457(c) and 457(h) of the
Securities Act, on the basis of the average of the high and low selling prices per share of Common Stock on July 3, 2014, as reported
on the NASDAQ Global Select Market.
|
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the
Securities and Exchange Commission (the “Commission”) by the Registrant are incorporated herein by reference:
|
|
(a)
|
the Registrant’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2013, filed with the Commission on February 26, 2014
;
|
|
|
(b)
|
the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ending March 31,
2014, filed with the Commission on May 15, 2014;
|
|
|
(c)
|
the Registrant’s Current Reports on Form 8-K filed with the Commission on January 14, 2014,
February 25, 2014, March 27, 2014, April 1, 2014, April 3, 2014 (two filings on this date), April 7, 2014, April 8, 2014, April
9, 2014, April 28, 2014, May 5, 2014, May 28, 2014, June 3, 2014, June 5, 2014 and June 30, 2014; and
|
|
|
(d)
|
the description of the Registrant’s Common Stock set forth in the Registrant’s Registration
Statement on Form 8-A, filed with the Commission on April 3, 2014 to register the Registrant’s Common Stock under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), with any subsequent amendment or report filed with the Commission
for the purpose of updating this description of the Registrant’s Common Stock.
|
All documents subsequently
filed by the Registrant 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 securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently
filed document which also is or is deemed to be incorporated by reference herein 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.
In no event, however,
will any information that the Registrant discloses under Item 2.02 or Item 7.01 of any Current Report on Form 8-K that the Registrant
may from time to time furnish to the Commission be incorporated by reference into, or otherwise become a part of, this Registration
Statement. Any statement contained in a document that is deemed to be incorporated by reference or deemed to be part of this Registration
Statement after the most recent effective date may modify or replace existing statements contained in this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Maryland General Corporation Law, or
MGCL, permits a Maryland corporation to include in its charter, a provision eliminating the liability of its directors and officers
to the corporation and its stockholders for money damages except for liability resulting from (1) actual receipt of an improper
benefit or profit in money, property or services or (2) active and deliberate dishonesty established by a final judgment as being
material to the cause of action. The Registrant’s charter contains such a provision that eliminates such liability to the
maximum extent permitted by Maryland law.
The MGCL requires a corporation (unless
its charter provides otherwise, which the Registrant’s charter does not) to indemnify a director or officer who has been
successful in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his or her
service in that capacity and 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 or threatened to be made a party by reason of their service in those or other capacities unless it is established
that:
|
|
·
|
the act or omission of the director or officer was material to the matter giving rise to the proceeding and (1) was committed
in bad faith or (2) was the result of active and deliberate dishonesty;
|
|
|
·
|
the director or officer actually received an improper personal benefit in money, property or services; or
|
|
|
·
|
in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was
unlawful.
|
However, under the MGCL, a Maryland corporation
may not indemnify a director or officer for an adverse judgment in a suit by or in the right of the corporation or for a judgment
of liability on the basis that personal benefit was improperly received. A court may order indemnification if it determines that
the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet
the prescribed standard of conduct or was adjudged liable on the basis that personal benefit was improperly received. However,
indemnification for an adverse judgment in a suit by the Registrant or in its right, or for a judgment of liability on the basis
that personal benefit was improperly received, is limited to expenses.
In addition, the MGCL permits a corporation
to advance reasonable expenses to a director or officer upon the corporation’s receipt of:
|
|
·
|
a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct
necessary for indemnification by the corporation; and
|
|
|
·
|
a written undertaking by the director or officer or on the director’s or officer’s behalf to repay the amount paid
or reimbursed by the corporation if it is ultimately determined that the director or officer did not meet the standard of conduct.
|
The Registrant’s charter authorizes
it, and the Registrant’s bylaws obligate it, to the maximum extent permitted by Maryland law in effect from time to time,
to indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse
reasonable expenses in advance of final disposition of a proceeding to:
|
|
·
|
any present or former director or officer of the Registrant who is made or threatened to be made a party to the proceeding
by reason of his or her service in that capacity; or
|
|
|
·
|
any individual who, while a director or officer of the Registrant and at its request, serves or has served another corporation,
real estate investment trust, partnership, limited liability company, joint venture, trust, employee benefit plan or any other
enterprise as a director, officer, partner, member, manager or trustee of such corporation, real estate investment trust, partnership,
limited liability company, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be
made a party to the proceeding by reason of his or her service in that capacity.
|
The Registrant’s charter and bylaws
also permit it to indemnify and advance expenses to any person who served a predecessor of the Registrant in any of the capacities
described above and to any employee or agent of the Registrant or a predecessor of the Registrant.
The Registrant may enter into indemnification
agreements with each of its directors and executive officers that would provide for indemnification to the maximum extent permitted
by Maryland law.
Insofar as the foregoing provisions permit
indemnification of directors, officers or persons controlling the Registrant for liability arising under the Securities Act, the
Registrant has been informed that, in the opinion of the Commission, this indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
|
Exhibit No.
|
Description
|
|
4.1
|
Articles of Amendment and Restatement of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed by the Registrant with the Commission on August 16, 2013)
|
|
4.2
|
Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed by the Registrant with the Commission on April 7, 2014)
|
|
4.3
|
Second Amended and Restated Agreement of Limited Partnership of American Realty Capital Operating Partnership, L.P. dated April 7, 2014 (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed by the Registrant with the Commission on April 7, 2014)
|
|
5.1
|
Opinion of Venable LLP (filed herewith)
|
|
23.1
|
Consent of Grant Thornton LLP (filed herewith)
|
|
23.2
|
Consent of Venable LLP (included in Exhibit 5.1)
|
|
24.1
|
Powers of Attorney (included on the signature page of this Registration Statement)
|
|
99.1
|
Employee and Director Incentive Restricted Share Plan of American Realty Capital Healthcare Trust, Inc. (incorporated by reference to Exhibit 10.5 to Pre-Effective Amendment No. 4 to the Registrant’s Registration Statement on Form S-11/A filed with the Commission on January 14, 2011)
|
|
99.2
|
First Amendment to Employee and Director Incentive Restricted Share Plan of American Realty Capital Healthcare Trust, Inc. (incorporated by reference to Exhibit 10.4 to the Registrant’s Current Report on Form 8-K filed by the Registrant with the Commission on April 7, 2014)
|
|
99.3
|
Second Amendment to Employee and Director Incentive Restricted Share Plan of American Realty Capital Healthcare Trust, Inc. (incorporated by reference to Exhibit 10.37 to the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ending March 31, 2014, filed with the Commission on May 15, 2014)
|
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. 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 end 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% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective 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) of this section do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in 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)
|
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 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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 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.
|
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 the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of New York, State of New York, on this 11
th
day of July, 2014.
|
|
AMERICAN REALTY CAPITAL
HEALTHCARE TRUST, INC.
|
|
|
By:
|
/s/ Thomas P. D’Arcy
|
|
|
|
Thomas P. D’Arcy
|
|
|
|
Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each of the undersigned
officers and directors of American Realty Capital Healthcare Trust, Inc. hereby constitutes and appoints Nicholas S. Schorsch and
Thomas P. D’Arcy, or any of them individually, such person’s true and lawful attorneys-in-fact and agents, with full
power of substitution and re-substitution, for and in such person’s name, place and stead, in the capacities indicated below,
to sign this Registration Statement on Form S-8 of American Realty Capital Healthcare Trust, Inc. and any and all amendments (including
post-effective amendments) thereto, and to file or cause to be filed 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, 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 connection
therewith, as fully to all intents and purposes as such person might, or could, do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, and each of them, 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,
this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the date indicated.
|
Signature
|
Title
|
Date
|
/s/ Nicholas S. Schorsch
Nicholas S. Schorsch
|
Executive Chairman of the Board of Directors
|
July 11, 2014
|
/s/ Thomas P. D’Arcy
Thomas P. D’Arcy
|
Chief Executive Officer
(Principal Executive Officer)
|
July 11, 2014
|
/s/ Edward
F. Lange, Jr.
Edward F. Lange, Jr.
|
Chief Financial Officer and Chief Operating Officer
(Principal Financial Officer and Principal Accounting Officer)
|
July 11, 2014
|
/s/ William M.
Kahane
William M. Kahane
|
Director
|
July 11, 2014
|
/s/ Leslie
D. Michelson
Leslie D. Michelson
|
Director
|
July 11, 2014
|
/s/ P. Sue Perrotty
P. Sue Perrotty
|
Director
|
July 11, 2014
|
/s/ Robert H. Burns
Robert H. Burns
|
Director
|
July 11, 2014
|
EXHIBIT INDEX
|
Exhibit No.
|
Description
|
|
4.1
|
Articles of Amendment and Restatement of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed by the Registrant with the Commission on August 16, 2013)
|
|
4.2
|
Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed by the Registrant with the Commission on April 7, 2014)
|
|
4.3
|
Second Amended and Restated Agreement of Limited Partnership of American Realty Capital Operating Partnership, L.P. dated April 7, 2014 (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed by the Registrant with the Commission on April 7, 2014)
|
|
5.1
|
Opinion of Venable LLP (filed herewith)
|
|
23.1
|
Consent of Grant Thornton LLP (filed herewith)
|
|
23.2
|
Consent of Venable LLP (included in Exhibit 5.1)
|
|
24.1
|
Powers of Attorney (included on the signature page of this Registration Statement)
|
|
99.1
|
Employee and Director Incentive Restricted Share Plan of American Realty Capital Healthcare Trust, Inc. (incorporated by reference to Exhibit 10.5 to Pre-Effective Amendment No. 4 to the Registrant’s Registration Statement on Form S-11/A filed with the Commission on January 14, 2011)
|
|
99.2
|
First Amendment to Employee and Director Incentive Restricted Share Plan of American Realty Capital Healthcare Trust, Inc. (incorporated by reference to Exhibit 10.4 to the Registrant’s Current Report on Form 8-K filed by the Registrant with the Commission on April 7, 2014)
|
|
99.3
|
Second Amendment to Employee and Director Incentive Restricted Share Plan of American Realty Capital Healthcare Trust, Inc. (incorporated by reference to Exhibit 10.37 to the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ending March 31, 2014, filed with the Commission on May 15, 2014)
|
Grafico Azioni (MM) (NASDAQ:HCT)
Storico
Da Mag 2024 a Giu 2024
Grafico Azioni (MM) (NASDAQ:HCT)
Storico
Da Giu 2023 a Giu 2024
