- Securities Registration: Real Estate Company (S-11/A)

As filed with the Securities and Exchange Commission on August 11, 2010

Registration Statement No. 333-165999

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 7

to

FORM S-11

FOR REGISTRATION

UNDER

THE SECURITIES ACT OF 1933

OF CERTAIN REAL ESTATE COMPANIES

 

 

DLC Realty Trust, Inc.

( Exact name of registrant as specified in its governing instruments )

 

 

580 White Plains Road

Tarrytown, New York 10591

[phone]

(Address, including Zip Code, and Telephone Number, including Area Code, of Registrant’s Principal Executive Offices)

 

 

Adam Ifshin

Chief Executive Officer and President

c/o DLC Realty Trust, Inc.

580 White Plains Road

Tarrytown, New York 10591

[phone]

(Name, Address, including Zip Code, and Telephone Number, including Area Code, of Agent for Service)

 

 

Copies to:

 

Larry P. Medvinsky, Esq.		Ettore A. Santucci, Esq.
Jason D. Myers, Esq.		Daniel P. Adams, Esq.
Clifford Chance US LLP		Goodwin Procter LLP
31 West 52 nd Street		Exchange Place, 53 State Street
New York, New York 10019		Boston, Massachusetts 02109
Tel: [phone]		Tel: [phone]
Fax: [phone]		Fax: [phone]

 

 

Approximate date of commencement of proposed sale to the public : As soon as practicable after the effective date of this registration statement.

If any of the Securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, check the following box:   ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box.   ¨

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. (Check One):

 

Large accelerated filer   ¨		Accelerated filer   ¨		Non-accelerated filer   x		Smaller Reporting Company   ¨
				(Do not check if a smaller reporting company)

 

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

 

 

 

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Explanatory Note

This Amendment No. 7 is being filed solely to refile Exhibit 10.8 hereto. No changes have been made

to the preliminary prospectus constituting Part I of the Registration Statement. Accordingly, such

preliminary prospectus has not been included herein.

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PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 31.

Other Expenses of Issuance and Distribution.

The following table shows the fees and expenses, other than underwriting discounts and commissions, to be paid by us in connection with the sale and distribution of the securities being registered hereby. All amounts except the Securities and Exchange Commission, or the SEC, registration fee are estimated.

 

Securities and Exchange Commission registration fee		$	42,637
Financial Industry Regulatory Authority, Inc. filing fee			58,000
New York Stock Exchange listing fee			250,000
Legal fees and expenses (including Blue Sky fees)			4,790,000
Accounting fees and expenses			6,668,000
Printing and engraving expenses			500,000
Transfer agent fees and expenses			50,000
Miscellaneous			485,960
Total		$	12,844,597

 

Item 32.

Sales to Special Parties.

None.

 

Item 33.

Recent Sales of Unregistered Securities.

On March 8, 2010, Adam Ifshin, purchased 1,000 shares of our common stock for a purchase price of $1,000 in a private offering. We will repurchase these shares at cost upon completion of this offering. Such issuance was exempt from the registration requirements of the Securities Act pursuant to Section 4(2) thereof.

Prior to or concurrently with the completion of this offering, certain holders of interests in our predecessor will exchange, through a series of mergers and other transactions, their equity interests in our predecessor for 18,713,015 operating partnership units and 2,375,000 shares of our common stock. All of such persons had a substantive, pre-existing relationship with us and irrevocably committed to the transfer of such interests prior to the initial filing of this registration statement, and no more than 35 of such persons are not “accredited investors” as defined under Regulation D of the Securities Act. Each such person is a holder of an interest in our predecessor and we have dealt with such persons throughout the tenure of such person’s ownership of interests in our predecessor. The issuance of such operating partnership units and common stock was effected in reliance upon an exemption from registration provided by Section 4(2) under the Securities Act in which no general solicitation was undertaken. All such persons were provided with and had access to information about the issuers of these securities including business objectives and historical property and financial information.

 

Item 34.

Indemnification of Directors and Officers.

Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from actual receipt of an improper benefit or profit in money, property or services or active and deliberate dishonesty established by a final judgment as being material to the cause of action. Our charter contains such a provision that eliminates the liability of our directors and officers to the maximum extent permitted by Maryland law.

The MGCL requires us (unless our charter provides otherwise, which our charter does not) to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which

 

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he or she is made or threatened to be made a party by reason of his or her service in that capacity. The MGCL permits us to indemnify our 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.

Under the MGCL, we may not indemnify a director or officer in a suit by or in the right of the corporation or in any proceeding charging improper personal benefit in which the director or officer was adjudged liable 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, was adjudged liable on the basis that personal benefit was improperly received. However, indemnification for an adverse judgment in a suit by us or in our 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 us to advance reasonable expenses to a director or officer upon our 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.

Our charter authorizes us to obligate ourselves and our bylaws obligate us, 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 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 our company and at our request, serves or has served another corporation, real estate investment trust, limited liability company, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner, trustee, member or manager of such corporation, real estate investment trust, limited liability company, partnership, 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.

Our charter and bylaws also permit us to indemnify and advance expenses to any person who served a Predecessor of ours in any of the capacities described above and any personnel or agent of our company or a Predecessor of our company. In addition, our 2010 equity incentive plan requires us to indemnify our directors and members of our compensation committee in connection with the performance of their duties, responsibilities and obligations under our 2010 equity incentive plan, to the maximum extent permitted by Maryland law.

Following completion of this offering, we intend to enter into indemnification agreements with each of our directors and executive officers that would provide for indemnification to the maximum extent permitted by Maryland law. In addition, our operating partnership’s partnership agreement provides that we, as general

 

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partner, and our officers and directors are indemnified to the maximum extent permitted by law. Furthermore, following completion of this offering, we intend to purchase and maintain insurance on behalf of all of our directors and executive officers against or incurred by them in their official capacities, whether or not we are required or have the power to indemnify them against the same liability and, pursuant to the indemnification agreements, we will be required to maintain a comparable “tail” directors’ and officers’ liability insurance policy for six years after each director or executive officer ceases to serve in such capacity.

Insofar as the foregoing provisions permit indemnification of directors, officers or persons controlling us for liability arising under the Securities Act, we have been informed that, in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

 

Item 35.

Treatment of Proceeds from Stock Being Registered.

None of the proceeds will be credited to an account other than the appropriate capital share account.

 

Item 36.

Financial Statements and Exhibits.

(a) Financial Statements . See page F-1 for an index to the financial statements included in the registration statement.

(b) Exhibits . The following is a complete list of exhibits filed as part of the registration statement, which are incorporated herein:

 

Exhibit Number		Exhibit Description
1.1**		Underwriting Agreement among DLC Realty Trust, Inc. and the underwriters named therein
3.1**		Form of Articles of Amendment and Restatement of DLC Realty Trust, Inc.
3.2**		Form of Amended and Restated Bylaws of DLC Realty Trust, Inc.
3.3**		Form of Amended and Restated Agreement of Limited Partnership of DLC Realty, L.P.
4.1**		Form of Specimen Common Stock Certificate of DLC Realty Trust, Inc.
5.1**		Opinion of Clifford Chance US LLP (including consent of such firm)
8.1**		Tax Opinion of Clifford Chance US LLP (including consent of such firm)
10.1**		Form of Registration Rights Agreement among DLC Realty Trust, Inc. and the persons named therein
10.2**		DLC Realty Trust, Inc. 2010 Equity Incentive Plan
10.3**		Form of Restricted Stock Agreement
10.4**		Form of LTIP Agreement
10.5**		Form of Tax Protection Agreement among DLC Realty Trust, Inc., DLC Realty, L.P., Adam Ifshin and Stephen Ifshin
10.6**		Form of Tax Protection Agreement among DLC Realty Trust, Inc., DLC Realty, L.P. and each of the persons listed on Schedule 2.1 thereto
10.7**		Form of Indemnification Agreement among DLC Realty Trust, Inc. and its directors and officers
10.8		Revolving Secured Credit Facility among DLC Realty Trust, Inc. and affiliates of certain of our underwriters
10.9**		Irrevocable Exchange and Subscription Agreement among DLC Realty Trust, Inc., DLC Realty, L.P., Adam Ifshin, Stephen Ifshin and the persons named on the signature page thereto

 

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Exhibit Number		Exhibit Description
10.10**		Representation, Warranty and Indemnity Agreement among DLC Realty Trust, Inc., DLC Realty, L.P., Adam Ifshin and Stephen Ifshin
10.11**		Employment Agreement between DLC Realty Trust, Inc. and Adam Ifshin
10.12**		Employment Agreement between DLC Realty Trust, Inc. and Stephen Ifshin
10.13**		Employment Agreement between DLC Realty Trust, Inc. and Daniel Taub
10.14**		Employment Agreement between DLC Realty Trust, Inc. and William Comeau
10.15**		Employment Agreement between DLC Realty Trust, Inc. and Jonathan Wigser
10.16**		Employment Agreement between DLC Realty Trust, Inc. and Michael Cohen
10.17**		Form of Amended and Restated Management Agreement
10.18**		Form of Management Agreement
21.1**		List of Subsidiaries of DLC Realty Trust, Inc.
23.1**		Consent of Clifford Chance US LLP (included in Exhibits 5.1 and 8.1)
23.2**		Consent of Ernst & Young LLP
23.3**		Consent of Edward N. Constantino
23.4**		Consent of Catherine J. Paglia
23.5**		Consent of Adam Popper
23.6**		Consent of Kieran P. Quinn
23.7**		Consent of Charles W.B. Wardell III
24.1**		Power of Attorney (included on the signature page to the registration statement)

 

**	Previously filed.

 

Item 37.

Undertakings.

(a) The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

(b) 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 SEC 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.

(c) The undersigned registrant hereby further undertakes that:

(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance under Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to part of this registration statement as of the time it was declared effective.

(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-11 and has duly caused this Amendment No. 7 to 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 August 11, 2010.

 

DLC Realty Trust, Inc.
By:		/s/    Adam W. Ifshin
		Adam W. Ifshin
		Chief Executive Officer and President

Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 7 to the Registration Statement has been signed below by the following persons in the capacities and on the date indicated.

 

Signatures				Title		Date
By:		/s/    Adam W. Ifshin Adam W. Ifshin		Chairman of Our Board of Directors, Chief Executive Officer and President (Principal Executive Officer)		August 11, 2010
By:		* Stephen N. Ifshin		Vice Chairman of Our Board of Directors		August 11, 2010

By:		/s/    William M. Comeau William M. Comeau		Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer)		August 11, 2010
*By:		/s/    Adam W. Ifshin Adam W. Ifshin Attorney-in-fact

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EXHIBIT INDEX

 

Exhibit Number		Exhibit Description
1.1**		Underwriting Agreement among DLC Realty Trust, Inc. and the underwriters named therein
3.1**		Form of Articles of Amendment and Restatement of DLC Realty Trust, Inc.
3.2**		Form of Amended and Restated Bylaws of DLC Realty Trust, Inc.
3.3**		Form of Amended and Restated Agreement of Limited Partnership of DLC Realty, L.P.
4.1**		Form of Specimen Common Stock Certificate of DLC Realty Trust, Inc.
5.1**		Opinion of Clifford Chance US LLP (including consent of such firm)
8.1**		Tax Opinion of Clifford Chance US LLP (including consent of such firm)
10.1**		Form of Registration Rights Agreement among DLC Realty Trust, Inc. and the persons named therein
10.2**		DLC Realty Trust, Inc. 2010 Equity Incentive Plan
10.3**		Form of Restricted Stock Agreement
10.4**		Form of LTIP Agreement
10.5**		Form of Tax Protection Agreement among DLC Realty Trust, Inc., DLC Realty, L.P., Adam Ifshin and Stephen Ifshin
10.6**		Form of Tax Protection Agreement among DLC Realty Trust, Inc., DLC Realty, L.P. and each of the persons listed on Schedule 2.1 thereto
10.7**		Form of Indemnification Agreement among DLC Realty Trust, Inc. and its directors and officers
10.8		Revolving Secured Credit Facility among DLC Realty Trust, Inc. and affiliates of certain of our underwriters
10.9**		Irrevocable Exchange and Subscription Agreement among DLC Realty Trust, Inc., DLC Realty, L.P., Adam Ifshin, Stephen Ifshin and the persons named on the signature page thereto
10.10**		Representation, Warranty and Indemnity Agreement among DLC Realty Trust, Inc., DLC Realty, L.P., Adam Ifshin and Stephen Ifshin
10.11**		Employment Agreement between DLC Realty Trust, Inc. and Adam Ifshin
10.12**		Employment Agreement between DLC Realty Trust, Inc. and Stephen Ifshin
10.13**		Employment Agreement between DLC Realty Trust, Inc. and Daniel Taub
10.14**		Employment Agreement between DLC Realty Trust, Inc. and William Comeau
10.15**		Employment Agreement between DLC Realty Trust, Inc. and Jonathan Wigser
10.16**		Employment Agreement between DLC Realty Trust, Inc. and Michael Cohen
10.17**		Form of Amended and Restated Management Agreement
10.18**		Form of Management Agreement
21.1**		List of Subsidiaries of DLC Realty Trust, Inc.
23.1**		Consent of Clifford Chance US LLP (included in Exhibits 5.1 and 8.1)
23.2**		Consent of Ernst & Young LLP
23.3**		Consent of Edward N. Constantino
23.4**		Consent of Catherine J. Paglia
23.5**		Consent of Adam Popper
23.6**		Consent of Kieran P. Quinn
23.7**		Consent of Charles W.B. Wardell III
24.1**		Power of Attorney (included on the signature page to the registration statement)

 

**	Previously filed.

 

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