Form S-8 Registration Statement
As
filed with the Securities and Exchange Commission on August 15,
2006
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
Community Properties Trust
(Exact
name of Registrant as specified in its Charter)
Maryland
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52-2058165
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(State
or Other Jurisdiction of
Incorporation
or Organization)
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(I.R.S.
Employer
Identification
Number)
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222
Smallwood Village Center
St.
Charles, Maryland 20602
(301)
843-8600
(Address
of principal executive office)
American
Community Properties Trust
Employees’
Share Incentive Plan
and
American
Community Properties Trust
Trustees’
Share Incentive Plan
(Full
title of the Plans)
J.
Michael Wilson
Chairman
and Chief Executive Officer
American
Community Properties Trust
222
Smallwood Village Center
St.
Charles, Maryland 20602
(301)
843-8600
(Name,
address and telephone number of agent for service)
Copies
to:
James
E. Showen, Esq.
Kevin
L. Vold, Esq.
Hogan
& Hartson L.L.P.
555
Thirteenth Street, N.W.
Washington,
D.C. 20004
(202)
637-5600
CALCULATION
OF REGISTRATION FEE
Title
of Each Class of Securities
To
Be Registered
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Amount
To Be
Registered(1)
(2)
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Proposed Maximum
Offering
Price
Per
Share(3)
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Proposed Maximum
Aggregate
Offering
Price
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Amount
of
Registration Fee
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Common
Stock, par value $0.01 per
share
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260,000 shares
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$19.81
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$5,150,600
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$551.11
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(1)
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208,000
shares of American Community Properties Trust common stock, par value
$.01
per share (“Common Stock”), are being registered pursuant to the American
Community Properties Trust Employees’ Share Incentive Plan and 52,000
shares of Common Stock are being registered pursuant to the American
Community Properties Trust Trustees’ Share Incentive
Plan.
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(2)
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Pursuant
to Rule 416(a) of the Securities Exchange Act of 1933, as amended
(the
“Securities Act”), this Registration Statement shall also cover any
additional shares of the Company’s Common Stock that become issuable under
the plan by reason of any stock splits, stock dividends or similar
transactions.
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(3)
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Calculated
pursuant to Rule 457(c) of the Securities Act on the basis of $19.81
per
share, which was the average of the high and low prices of the Common
Stock as quoted on the American Stock Exchange on August 10, 2006.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1.
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Plan Information.
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Not
required to be filed with the Securities and Exchange Commission (the
“Commission”).
Item
2.
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Registrant Information and Employee Plan Annual
Information.
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American
Community Properties Trust (the “Company”) will provide participants, upon
written or oral request and without charge, a copy of the documents incorporated
by reference in Item 3 of Part II, which are incorporated by reference in the
Section 10(a) prospectus, and all documents required to be delivered to
employees pursuant to Rule 428(b) under the Securities Act. Request for such
documents should be directed to American Community Properties Trust, 222
Smallwood Village Center, St. Charles, Maryland 20602, attention: Investor
Relations, telephone number (301) 843-8600.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
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Incorporation of Documents by Reference.
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We
incorporate information into this Registration Statement by reference, which
means that we disclose important information to you by referring you to another
document filed separately with the Commission. The information incorporated
by
reference is deemed to be part of this Registration Statement, except to the
extent superseded by information contained herein or by information contained
in
documents filed with or furnished to the Commission after the date of this
Registration Statement. This Registration Statement incorporates by reference
the documents set forth below, the file number for each of which is 001-14369,
that have been previously filed with the Commission:
· |
our
Annual Report on Form 10-K/A for the year ended December 31,
2005 filed with the Commission on April 3, 2006;
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· |
our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2006
and
June 30, 2006 as filed with the Commission on May 15, 2006 and August
11,
2006, respectively;
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· |
our
Current Report on Form 8-K filed with the Commission on March 10,
2006; and
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· |
the
description of our common stock incorporated by reference to our
Registration Statement on Form 8-A, filed under Section 12 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), which
incorporates by reference the description of our common stock contained
in
our Registration Statement on Form
S-11 (Reg. No. 333-58835),
and all amendments or reports filed for the purpose of updating such
description.
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We
also
incorporate by reference into this Registration Statement additional documents
that we may file with the Commission under Section 13(a), 13(c), 14 or 15(d)
of
the Exchange Act from the date of this Registration Statement until the filing
of a post-effective amendment that indicates that all securities offered have
been sold or that deregisters all securities then remaining unsold; provided,
however, that we are not incorporating any information furnished under either
Item 2.02 or Item 7.01 of any Current Report on Form 8-K except to the extent
set forth above. These documents may include annual reports on Form 10-K,
quarterly reports on Form 10-Q and current reports on Form 8-K, as well as
proxy
statements.
You
may
obtain copies of any of these filings through the Commission’s public reference
room located at 100 F Street, NE, Washington, D.C. 20549. Please call the
Commission at 1-800-SEC-0330 for further information on the public reference
room. The filings with the Commission are also available to the public from
commercial document retrieval services and are also available, without charge,
at the Internet website maintained by the Commission at http://www.sec.gov.
Documents incorporated by reference are also available without charge, excluding
all exhibits unless an exhibit has been specifically incorporated by reference
into this Registration Statement, by requesting them in writing, by telephone
or
via the Internet at:
American
Community Properties Trust
222
Smallwood Village Center
St.
Charles, Maryland 20602
Attention:
Investor Relations
(301)
843-8600
Internet
Website: www.acptrust.com
THE
INFORMATION CONTAINED ON OUR WEBSITE DOES NOT CONSTITUTE A PART OF THIS
REGISTRATION STATEMENT.
Item
6.
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Indemnification of Directors and Officers.
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The
Company's Restated Declaration of Trust provides that, to the fullest extent
permitted by Maryland law, trustees of the Company will not be liable to the
Company or its shareholders for monetary damages for any act or omission
occurring in their capacity as a trustee. Maryland law does not currently
authorize the elimination or limitation of the liability of a director to the
extent the director is found liable for (i) actual receipt of an improper
benefit or profit in money, property, or services or, (ii) actions or failures
to act that are the result of active and deliberate dishonesty and that are
material to the cause of action, a breach of duty of the director of the Company
or which involve intentional misconduct or a knowing violation of
law.
The
Company's Restated Declaration of Trust and its Bylaws grant mandatory
indemnification to trustees and officers of the Company to the fullest extent
authorized under Maryland law. 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 permitted by the Maryland
General Corporation Law (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 a party by reason of their service in those
capacities unless it is established that (a) the act or omission of the
director or officer was material to the matter giving rise to the proceeding
and
(i) was committed in bad faith or (ii) was a result of active and
deliberate dishonesty, (b) the director 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 or if the director or officer was adjudged to be liable to the
corporation nor may a director be indemnified in circumstances in which the
director is found liable for an improper personal benefit. In accordance with
the MGCL and our bylaws, our bylaws require us, as a condition to advancement
of
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 and (b) a written undertaking by or on his
behalf to repay the amount paid or reimbursed by us if it shall ultimately
be
determined that the applicable standard of conduct was not met.
The
above
discussion of the Company's Restated Declaration of Trust and Bylaws and of
the
Maryland law is not intended to be exhaustive and is qualified in its entirety
by the Restated Declaration of Trust and Bylaws and the Maryland
law.
The
Company maintains trustee and officer liability insurance providing insurance
protection for specified liabilities under specified terms.
Insofar
as the foregoing provisions permit indemnification of directors, officers or
persons controlling the Company, the Company has been informed that, in the
opinion of the Securities and Exchange Commission, this indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
Item
8. Exhibits.
The
Exhibits to this Registration Statement are listed on the exhibit index, which
appears elsewhere herein and is incorporated herein by reference.
Item
9. Undertakings.
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(a)
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The
undersigned Company hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made,
a
post-effective amendment to this registration statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
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(ii)
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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 law 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 a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective registration statement;
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(iii)
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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;
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Provided,
however,
that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement
is on Form S-8, and 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 Company pursuant to Section 13 or 15(d)
of
the Exchange Act that are incorporated by reference in the registration
statement.
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(2)
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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.
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(3)
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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.
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(b)
The
undersigned Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company’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 the 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 Company
pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a director, officer
or controlling person of the Company 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 Company 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 registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
St.
Charles, State of Maryland, on August 15, 2006.
American
Community Properties Trust
(Registrant)
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By:
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/s/
J. Michael Wilson
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J.
Michael Wilson
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Chairman
and Chief Executive Officer
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POWER
OF ATTORNEY
We,
the
undersigned directors and officers of American Community Properties Trust,
a
Maryland corporation, do hereby constitute and appoint J. Michael Wilson and
Cynthia L. Hedrick our true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, to do any and all acts and things
in
our names and on our behalf in our capacities as directors and officers and
to
execute any and all instruments for us and in our name in the capacities
indicated below, which said attorneys and agents may deem necessary or advisable
to enable said corporation to comply with the Securities Act of 1933 and any
rules, regulations and requirements of the Securities and Exchange Commission,
in connection with this Registration Statement, or any registration statement
for this offering that is to be effective upon filing pursuant to Rule 462(b)
under the Securities Act of 1933, including specifically, but without
limitation, any and all amendments (including post-effective amendments) hereto;
and we hereby ratify and confirm all that said attorneys and agents, or either
of them, shall do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, the registration statement
has been signed by the following persons in the capacities indicated on August
15, 2006.
Signature
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Title
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/s/
J. Michael Wilson
J.
Michael Wilson
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Chairman,
Chief Executive Officer and Trustee
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/s/
Edwin L. Kelly
Edwin
L. Kelly
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President,
Chief Operating Officer and Trustee
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/s/
Thomas J. Shafer
Thomas
J. Shafer
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Trustee
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/s/
T. Michael Scott
T.
Michael Scott
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Trustee
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/s/
Antonio Ginorio
Antonio
Ginorio
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Trustee
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/s/
Thomas S. Condit
Thomas
S. Condit
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Trustee
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/s/
Cynthia L. Hedrick
Cynthia
L. Hedrick
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Executive
Vice President and Chief Financial Officer
(Principal
Financial Officer)
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/s/
Matthew M. Martin
Matthew
M. Martin
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Vice
President and Chief Accounting Officer
(Principal
Accounting Officer)
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EXHIBIT
INDEX
Exhibit No.
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Description
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Reference
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5.1
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Opinion
of Hogan & Hartson L.L.P. as to the legality of the securities being
registered.
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Filed
herewith
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23.1
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Consent
of Hogan & Hartson L.L.P.
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Included
in Exhibit 5.1
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23.2
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Consent
of Ernst & Young LLP.
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Filed
herewith
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24.1
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Powers
of Attorney.
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Included
on signature page
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99.1
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American
Community Properties Trust Employees’ Share Incentive Plan.
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Exhibit
10.5 to form S-4
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99.2
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American
Community Properties Trust Trustees’ Share Incentive Plan.
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Exhibit
10.5 to form S-4
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