AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 28, 2004
REGISTRATION NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NORTHSTAR REALTY FINANCE CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 11-3707493
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
527 MADISON AVENUE, 16TH FLOOR
NEW YORK, NEW YORK 10022
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
NORTHSTAR REALTY FINANCE CORP. 2004 OMNIBUS STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
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MARK E. CHERTOK
CHIEF FINANCIAL OFFICER
527 MADISON AVENUE, 16TH FLOOR
NEW YORK, NEW YORK 10022
(212) 319-3400
(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE
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Common stock, par value $0.01 per share (2) 1,375,000 $8.68 (3) $11,935,000 $1,512.16
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
registration statement also covers additional shares that may become
issuable under the Plan by reason of certain corporate transactions or
events, including any stock dividend, stock split, recapitalization or any
other similar transaction effected without the receipt of consideration
which results in an increase in the number of the registrant's outstanding
shares of common stock.
(2) Represents the number of shares of common stock, par value $0.01 per share,
of NorthStar Realty Finance Corp. (the "Shares") issuable under the
NorthStar Realty Finance Corp. 2004 Omnibus Stock Incentive Plan (the
"Plan"). Shares issuable under the Plan include (a) awards of restricted
Shares under the Plan, (b) if Units (as defined in the Plan) are awarded
under the Plan, the Shares issuable upon redemption of such Units, or (c)
Shares issuable upon exercise of stock options, stock appreciation rights
or certain Other Awards (as defined in Section 10 of the Plan) made under
the Plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act by
averaging the high and low sales prices of NorthStar Realty Finance Corp.
common stock as reported by the New York Stock Exchange on October 27,
2004.
EXPLANATORY NOTE
This registration statement registers shares of common stock, par value
$0.01 per share (the "Common Stock"), of NorthStar Realty Finance Corp. (the
"Company") that may be issued and sold under the NorthStar Realty Finance Corp.
2004 Omnibus Stock Incentive Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* The documents containing the information specified in Part I of Form
S-8 will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents need
not be filed with the Securities and Exchange Commission (the "SEC") either as
part of this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference in this registration statement pursuant to Item 3 of
Part II of this registration statement, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the SEC are incorporated
by reference in this registration statement:
(a) The Company's prospectus, dated October 25, 2004, filed pursuant to
Rule 424(b) under the Securities Act (the "Prospectus") and that contains (i)
the audited consolidated balance sheet of the Company as of June 30, 2004, (ii)
the audited combined financial statements of NorthStar Realty Finance Corp.
Predecessor for the fiscal year ended December 31, 2003, (iii) the audited
consolidated financial statements and schedules of ALGM I Owners LLC and
Subsidiaries for the fiscal year ended December 31, 2003, and (iv) the audited
financial statements and schedule of NorthStar Funding LLC for the fiscal year
ended December 31, 2003.
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities and Exchange Act of 1934, as amended (the "Exchange
Act") since the end of the last fiscal year covered by the Company's Prospectus;
and
(c) The description of the Common Stock contained in the Registration
Statement on Form 8-A, dated October 25, 2004, filed with the SEC by the Company
to register the Common
Stock under the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered 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 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
subsequently filed document that also is or is deemed to be incorporated by
reference in this registration statement, modifies or supersedes such prior
statement. Any statement contained in this registration statement shall be
deemed to be modified or superseded to the extent that a statement contained in
a subsequently filed document that is or is deemed to be incorporated by
reference in this registration statement modifies or supersedes such prior
statement. Any 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 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 (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 and which is material to the cause of action. The Company's
charter contains such a provision which eliminates directors' and officers'
liability to the maximum extent permitted by Maryland law.
The charter authorizes the Company, to the maximum extent permitted by
Maryland law, to obligate the Company to indemnify any present or former
director or officer or any individual who, while a director or officer of the
Company and at the request of the Company, serves or has served another
corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or other enterprise as a director, officer, partner or
trustee, from and against any claim or liability to which that person may become
subject or which that person may incur by reason of his or her service in such
capacity and to pay or reimburse their reasonable expenses in advance of final
disposition of a proceeding. The Company's bylaws obligate the Company, to the
maximum extent permitted by Maryland law, to indemnify any present or former
director or officer or any
individual who, while a director or officer of the Company and at the request of
the Company, serves or has served another corporation, real estate investment
trust, partnership, joint venture, trust, employee benefit plan or other
enterprise as a director, officer, partner or trustee and who is made a party to
the proceeding by reason of his service in that capacity from and against any
claim or liability to which that person may become subject or which that person
may incur by reason of his or her service in such capacity and to pay or
reimburse their reasonable expenses in advance of final disposition of a
proceeding. The charter and bylaws also permit the Company to indemnify and
advance expenses to any person who served a predecessor of the Company in any of
the capacities described above and any employee or agent of the Company or a
predecessor of the Company.
Maryland law requires a corporation (unless its charter provides
otherwise, which the Company'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 a party by reason of his or her service in that capacity. Maryland
law 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 director
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 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. 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 or in the right of the corporation, or for a judgment of liability on
the basis that personal benefit was improperly received, is limited to expenses.
In addition, Maryland law permits a corporation to advance reasonable expenses
to a director or officer upon the corporation's receipt of (a) 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 (b) a written undertaking by him or on his behalf to repay the
amount paid or reimbursed by the corporation if it is ultimately determined that
the standard of conduct was not met. The charter and bylaws also permit the
Company to indemnify and advance expenses to any person who served a predecessor
of the Company in any of the capacities described above and any employee or
agent of the Company or its predecessors.
The Company has entered into indemnification agreements with each of
its directors and executive officers which require that it indemnify such
directors and officers to the maximum extent permitted by Maryland law and pay
such persons' expenses in defending any civil or criminal proceeding in advance
of final disposition of such proceeding.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION
NO.
4.1 Form of certificate for common stock*
5.1 Opinion of Venable LLP relating to the legality of the common
stock being registered hereby
23.1 Consent of Ernst & Young LLP
23.2 Consent of Venable LLP (included in Exhibit 5.1)
24.1 Power of Attorney of David T. Hamamoto
24.2 Power of Attorney of W. Edward Scheetz
24.3 Power of Attorney of William V. Adamski
24.4 Power of Attorney of Preston Butcher
24.5 Power of Attorney of Judith A. Hannaway
24.6 Power of Attorney of Wesley D. Minami
24.7 Power of Attorney of Frank V. Sica
99.1 NorthStar Realty Finance Corp. 2004 Omnibus Stock Incentive Plan**
* Incorporated by reference to Exhibit 4.1 of the Company's Registration
Statement on Form S-11 (Registration No. 333-114675), as amended. Such
registration statement was originally filed with the Securities and
Exchange Commission on April 21, 2004.
** Incorporated by reference to Exhibit 10.6 of the Company's Registration
Statement on Form S-11 (Registration No. 333-114675), as amended. Such
registration statement was originally filed with the Securities and
Exchange Commission on April 21, 2004.
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;
(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 a 20% change in
the 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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 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 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 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 City of New York, State of New York, on October 28, 2004.
NORTHSTAR REALTY FINANCE CORP.
By: /s/ Mark E. Chertok
--------------------------------
Name: Mark E. Chertok
Title: Chief Financial Officer
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
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* Chairman of the Board of October 28, 2004
- ----------------------- Directors
W. Edward Scheetz
* President, Chief Executive October 28, 2004
- ----------------------- Officer and Director
David T. Hamamoto (Principal Executive Officer)
/s/ Mark E. Chertok Chief Financial Officer and October 28, 2004
- ----------------------- Treasurer
Mark E. Chertok (Principal Financial and
Accounting Officer)
* Director October 28, 2004
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William V. Adamski
* Director October 28, 2004
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Preston Butcher
* Director October 28, 2004
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Judith A. Hannaway
* Director October 28, 2004
- -----------------------
Wesley D. Minami
* Director October 28, 2004
- -----------------------
Frank V. Sica
*By: Mark E. Chertok
Attorney-in-Fact
EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
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4.1 Form of certificate for common stock*
5.1 Opinion of Venable LLP relating to the legality of the common stock
being registered hereby
23.1 Consent of Ernst & Young LLP
23.2 Consent of Venable LLP (included in Exhibit 5.1)
24.1 Power of Attorney of David T. Hamamoto
24.2 Power of Attorney of W. Edward Scheetz
24.3 Power of Attorney of William V. Adamski
24.4 Power of Attorney of Preston Butcher
24.5 Power of Attorney of Judith A. Hannaway
24.6 Power of Attorney of Wesley D. Minami
24.7 Power of Attorney of Frank V. Sica
99.1 NorthStar Realty Finance Corp. 2004 Omnibus Stock Incentive Plan**
* Incorporated by reference to Exhibit 4.1 of the Company's Registration
Statement on Form S-11 (Registration No. 333-114675), as amended. Such
registration statement was originally filed with the Securities and
Exchange Commission on April 21, 2004.
** Incorporated by reference to Exhibit 10.6 of the Company's Registration
Statement on Form S-11 (Registration No. 333-114675), as amended. Such
registration statement was originally filed with the Securities and
Exchange Commission on April 21, 2004.
