As filed with the Securities and Exchange Commission on August 13 , 2002.
Registration No. __________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------------
HERITAGE PROPERTY INVESTMENT TRUST, INC.
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND
(State or Other Jurisdiction of Incorporation or Organization)
04-3474810
(I.R.S. Employer Identification No.)
535 BOYLSTON STREET, BOSTON, MA 02116
(Address of Principal Executive Offices) (Zip Code)
----------------------
HERITAGE PROPERTY INVESTMENT TRUST, INC. AMENDED AND RESTATED 2000 EQUITY
INCENTIVE PLAN
(Full Title of the Plan)
----------------------
THOMAS C. PRENDERGAST
President and Chief Executive Officer
Heritage Property Investment Trust, Inc.
535 Boylston Street
Boston, MA 02116
(Name and Address of Agent for Service)
(617) 247-2200
Telephone Number, Including Area Code, of Agent For Service
----------------------
with copies to:
VICTOR J. PACI, ESQ.
STEPHEN H. FABERMAN, ESQ.
BINGHAM MCCUTCHEN LLP
150 Federal Street
Boston, Massachusetts 02110
Telephone: (617) 951-8000
Telecopy: (617) 951-8736
CALCULATION OF REGISTRATION FEE
=================================================================================================================
Proposed Proposed
Title Of Maximum Maximum
Securities Amount Offering Aggregate Amount Of
To Be To Be Price Per Offering Registration
Registered Registered Share (1) Price Fee
===================================== ==================== =============== =================== ===================
Common Stock, 3,600,000 $25.00 $90,000,000 $8,280
$0.001 par value per share
===================================== ==================== =============== =================== ===================
(1) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(h) under the Securities Act of 1933, as amended.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
All information required by Part I to be contained in the prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Heritage Property Investment Trust,
Inc. (the "Registrant") with the Securities and Exchange Commission (the "SEC")
are hereby incorporated by reference in this Registration Statement:
(a) The Registrant's prospectus, filed with the SEC on April 24,
2002 pursuant to Rule 424(b) under the Securities Act of
1933, as amended (the "Securities Act"), that contains
audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed.
(b) The description of the Registrant's Common Stock, $0.001 par
value per share, contained in the Registrant's Registration
Statement on Form 8-A, as filed with the SEC on April 10,
2002, under Section 12(b) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including any
amendment or report filed for the purpose of updating such
description.
In addition, 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 of such 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 such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS OR COUNSEL.
As of August 13, 2002, attorneys at Bingham McCutchen LLP, counsel to
the Registrant, owned an aggregate of 6,900 shares of the Registrant's Common
Stock. Victor J. Paci, a partner at Bingham McCutchen LLP, is the Secretary of
the Registrant. Stephen H. Faberman, a partner at Bingham McCutchen LLP, is an
Assistant Secretary of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Amendment and Restatement (Third) of the Registrant
contain a provision permitted under Maryland General Corporation Law
eliminating, with limited exceptions, each director's and officer's personal
liability for monetary damages for breach of any duty as a director or officer.
In addition, the Registrant's charter documents require the Registrant to
indemnify its directors and officers from specified liabilities and expenses,
as well as advancement of costs, expenses and attorneys' fees, to the fullest
extent permitted under Maryland General Corporation Law. These rights are
contract rights fully enforceable by each beneficiary of those rights, and are
in addition to, and not exclusive of, any other right to indemnification.
In addition, the Registrant's directors and officers are indemnified
for specified liabilities and expenses pursuant to the partnership agreements
of Heritage Property Investment Limited Partnership and Bradley Operating
Limited Partnership, two partnerships in which the Registrant serves, directly
or indirectly, as sole general partner.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are part of this Registration Statement:
4.1 Articles of Amendment and Restatement (Third) of the
Registrant. (Incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-11
(Registration No. 333-69118), filed on September 7, 2001, as
amended.)
4.2 Amended and Restated By-Laws of the Registrant. (Incorporated
by reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-11 (Registration No. 333-69118), filed on
September 7, 2001, as amended.)
4.3 Heritage Property Investment Trust, Inc. Amended and Restated
2000 Equity Incentive Plan. (Incorporated by reference to
Exhibit 10.8 to the Registrant's Registration Statement on
Form S-11 (Registration No. 333-69118), filed on September 7,
2001, as amended.)
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP with
respect to the legality of the shares being registered.
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included
in Exhibit 5).
23.2 Consent of KPMG LLP
24 Power of Attorney (included on the signature pages of this
Registration Statement).
ITEM 9. UNDERTAKINGS.
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 to include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this 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 that remain
unsold at the termination of the offering;
(4) 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 (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 this 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; and
(5) 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.
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-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boston, State of
Massachusetts, on this 13th day of August 2002.
HERITAGE PROPERTY INVESTMENT TRUST, INC.
By: /s/Thomas C. Prendergast
------------------------------------------
Thomas C. Prendergast
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below hereby appoints Thomas C.
Prendergast his/her true and lawful attorney-in-fact with the authority to
execute in the name of each such person, and to file with the Securities and
Exchange Commission, together with any exhibits thereto and other documents
therewith, any and all amendments (including without limitation post-effective
amendments) to this Registration Statement on Form S-8 necessary or advisable
to enable the Registrant to comply with the Securities Act of 1933, as amended,
and any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, which amendments may make such other changes in
the Registration Statement as the aforesaid attorney-in-fact executing the same
deems appropriate.
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.
Signature Title Date
/s/Thomas C. Prendergast President and Chief Executive August 13, 2002
- -------------------------------------------- Officer, Director (principal
Thomas C. Prendergast executive officer)
/s/David G. Gaw Senior Vice President, Chief August 13, 2002
- -------------------------------------------- Financial Officer and Treasurer
David G. Gaw (principal financial officer)
/s/Patrick O'Sullivan Vice President of Finance and August 13, 2002
- -------------------------------------------- Assistant Treasurer (principal
Patrick O'Sullivan accounting officer)
/s/Joseph L. Barry
- --------------------------------------------
Joseph L. Barry Director August 13, 2002
/s/David W. Laughton
- --------------------------------------------
David W. Laughton Director August 13, 2002
/s/William M. Vaughn
- --------------------------------------------
William M. Vaughn, III Director August 13, 2002
/s/Bernard Cammarata
Bernard Cammarata Director August 13, 2002
/s/Robert Falzon
Robert Falzon Director August 13, 2002
Paul V. Walsh Director August __, 2002
/s/Robert J. Watson
- --------------------------------------------
Robert J. Watson Director August 13, 2002
/s/Kenneth K. Quigley, Jr.
- --------------------------------------------
Kenneth K. Quigley, Jr. Director August 13, 2002
/s/Kevin C. Phelan
- --------------------------------------------
Kevin C. Phelan Director August 13, 2002
/s/Richard C. Garrison
- --------------------------------------------
Richard C. Garrison Director August 13, 2002
EXHIBIT INDEX
Exhibit No. Description of Documents
4.1 Articles of Amendment and Restatement (Third) of the
Registrant. (Incorporated by reference to Exhibit 3.1 to
the Registrant's Registration Statement on Form S-11
(Registration No. 333-69118), filed on September 7, 2001, as
amended.)
4.2 Amended and Restated By-Laws of the Registrant. (Incorporated
by reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-11 (Registration No.
333-69118), filed on September 7, 2001, as amended.)
4.3 Heritage Property Investment Trust, Inc. Amended and Restated
2000 Equity Incentive Plan. (Incorporated by reference to
Exhibit 10.8 to the Registrant's Registration Statement on
Form S-11 (Registration No. 333-69118), filed on September 7,
2001, as amended.)
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP with
respect to the legality of the shares being registered.
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included
in Exhibit 5)
23.2 Consent of KPMG LLP.
24 Power of Attorney (included on the signature pages of this
Registration Statement).