As filed with the Securities and Exchange Commission on June 4, 2021
Registration No. 333-______________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_____________________
PREFERRED APARTMENT COMMUNITIES, INC.
(Exact name of registrant as specified in its charter)
Maryland 27-1712193
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
3284 Northside Parkway NW, Suite 150
Atlanta, Georgia 30327
(Address of Principal Executive Offices, including Zip Code)
_____________________
Preferred Apartment Communities, Inc. 2019 Stock Incentive Plan
(Full title of the plan)
Jeffrey R. Sprain, Esq.
Preferred Apartment Communities, Inc.
3284 Northside Parkway NW
Suite 150
Atlanta, Georgia 30327
(770) 818-4100
_____________________
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer smaller reporting company or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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¨
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Accelerated filer
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ý
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
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Title 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 (3)
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Amount of Registration Fee (4)
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Common Stock, $0.01 par value per share
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2,100,000
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10.00
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21,000,000.00
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2,291.10
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(1)This Registration Statement covers 1,900,000 additional shares of common stock, par value $0.01 per share (the "Common Stock"), of Preferred Apartment Communities, Inc. (the "Registrant"), that are available for issuance under the Preferred Apartment Communities, Inc. 2019 Stock Incentive Plan (as amended, the "Plan") and an additional 200,000 shares of Common Stock for issuance under the Plan for administrative convenience.
(2)Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement also includes an indeterminate number of shares of Common Stock that may be offered and sold as a result of future stock splits, stock dividends or similar transactions under the Plan.
(3)Pursuant to Securities Act Rule 457(c) and (h), the maximum offering price, per share and in the aggregate, was calculated upon the basis of the average of the high and low prices of the Common Stock on June 1, 2021, as reported on the New York Stock Exchange.
EXPLANATORY NOTE
The Registrant previously filed Form S-8 registration statements with the Securities and Exchange Commission (the "SEC") on May 4, 2012 (File No. 333-181165), September 27, 2013 (File No. 333-191418), and March 18, 2016 (File No. 333-210281) relating to its 2011 Stock Incentive Plan and the amendments thereto (the "Original Plan") and on May 10, 2019 (File No. 333-231394) relating to the Plan, which was and amendment and restatement of the Original Plan (collectively, the "Prior Registration Statements"). In those filings, the Registrant registered 533,214 shares, 750,000 shares, 1,300,000 shares and 1,000,000 shares, respectively, of its common stock, par value $0.01 per share ("Common Stock"), that were authorized for issuance under the Original Plan or the Plan.
On June 3, 2021, the stockholders of the Registrant approved the First Amendment to the Preferred Apartment Communities, Inc. 2019 Stock Incentive Plan (the "First Amendment"), which amends the Plan by increasing the number of shares of Common Stock that the Registrant is authorized to issue by 1,900,000 shares (the "Additional Shares"). The Plan is further described in the Registrant’s Definitive Proxy Statement on Schedule 14A filed on March 15, 2019.
This Registration Statement on Form S-8 (this "Registration Statement") is being filed pursuant to General Instruction E of Form S-8 for the purpose of registering the Additional Shares under the Plan and an additional 200,000 shares of Common Stock for issuance under the Plan for administrative convenience, which shares are of the same class as those securities covered by the Prior Registration Statements.
Except as otherwise set forth below, the contents of the Prior Registration Statements are incorporated by reference into this Registration Statement, as permitted by General Instruction E of Form S-8.
Item 8. Exhibits.
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Exhibit No.
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Reference
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Description
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4.1
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4.2
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5.1
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*
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23.1
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*
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23.2
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*
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Consent of Venable LLP (Included in Exhibit 5.1)
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24.1
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Power of Attorney (set forth on signature page hereto)
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99.1
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*
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*Filed herewith
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 Atlanta, State of Georgia, on June 4, 2021
PREFERRED APARTMENT COMMUNITIES, INC.
By: /s/ Joel T. Murphy___
Joel T. Murphy
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Joel T. Murphy, John A. Isakson, Michael J. Cronin, and Jeffrey R. Sprain, and each of them acting individually, as his true and lawful attorneys-in-fact and agents, with full power of each to act alone, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, with full power of each to act alone, 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 for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement on has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Joel T. Murphy
Joel T. Murphy
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President and Chief Executive Officer and Director (Principal Executive Officer)
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June 4, 2021
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/s/ John A. Isakson
John A. Isakson
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Executive Vice President and Chief Financial Officer (Principal Financial Officer)
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June 4, 2021
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/s/ Michael J. Cronin
Michael J. Cronin
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Executive Vice President, Chief Accounting Officer and Treasurer (Principal Accounting Officer)
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June 4, 2021
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/s/ Steve Bartkowski
Steve Bartkowski
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Director
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June 4, 2021
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/s/ John M. Cannon
John M. Cannon
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Director
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June 4, 2021
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/s/ Gary B. Coursey
Gary B. Coursey
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Director
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June 4, 2021
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/s/ Sara J. Finley
Sara J. Finley
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Director
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June 4, 2021
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/s/ Howard A. McLure
Howard A. McLure
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Director
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June 4, 2021
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/s/ Timothy A. Peterson
Timothy A. Peterson
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Director
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June 4, 2021
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Preferred Apartment Communities, Inc.
June 4, 2021
Page 1
June 4, 2021
Preferred Apartment Communities, Inc.
3284 Northside Parkway NW, Suite 150
Atlanta, Georgia 30327
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as Maryland counsel to Preferred Apartment Communities, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the registration of up to an additional 1,900,000 shares (the “Shares”) of common stock, par value $0.01 per share, of the Company (the “Common Stock”), which will be issued from time to time pursuant to the Preferred Apartment Communities Inc. 2019 Stock Incentive Plan, as amended (the “Plan”). The Shares are covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1. The Registration Statement;
2. The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Fifth Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
Preferred Apartment Communities, Inc.
June 4, 2021
Page 2
5. Resolutions adopted by the Board of Directors of the Company relating to, among other matters, the approval of the Plan and the issuance of the Shares (the “Resolutions”), certified as of the date hereof by an officer of the Company;
6. The Plan, certified as of the date hereof by an officer of the Company;
7. A certificate executed by an officer of the Company, dated as of the date hereof; and
8. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or any other person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. The Shares will not be issued or transferred in violation of any restriction or limitation contained in Section 4.07 of Article 4 of the Charter or in the Plan.
6. Upon the issuance of any of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter.
7. Each option, restricted stock unit, right or other security exercisable or exchangeable for a Share pursuant to the Plan (each, an “Option”) will be duly authorized and
Preferred Apartment Communities, Inc.
June 4, 2021
Page 3
validly granted in accordance with the Plan and exercised or exchanged in accordance with the terms of the Plan, including any stock option agreement, restricted stock agreement or other form of award agreement entered into in connection therewith, at the time of any exercise or exchange of such Option.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The issuance of the Shares has been duly authorized and, when and to the extent issued in accordance with the Registration Statement, the Resolutions, the Plan and any stock option agreement, restricted stock agreement or other form of award agreement utilized under the Plan, the Shares will be validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning federal law or the laws of any other state. We express no opinion as to compliance with any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
/s/ Venable LLP
FIRST AMENDMENT
TO THE
PREFERRED APARTMENT COMMUNITIES, INC.
2019 STOCK INCENTIVE PLAN
This FIRST AMENDMENT (this "Amendment") to the Preferred Apartment Communities, Inc. 2019 Stock Incentive Plan (as amended, the "Plan") is made effective as of June 3, 2021 (the "Amendment Effective Date"), with respect to all Awards (as defined in the Plan) outstanding as of such date and granted on or after such date, by Preferred Apartment Communities, Inc., a Maryland corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Plan was established by the Company as an amendment and restatement of the Company’s 2011 Stock Incentive Plan that was effective February 25, 2011 (as amended, "2011 Plan"), that was effective as of May 2, 2019, the day is was approved by the Company’s stockholders;
WHEREAS, the Company now desires to amend the Plan to increase the aggregate number of shares that may be issued under the Plan and to extend the term of the Plan;
NOW, THEREFORE, pursuant to the authority reserved in Section 7.13 of the Plan, subject to the approval of this Amendment by the stockholders of the Company, the Plan is amended as follows:
1.The first sentence of Section 3.2 of the Plan is hereby amended and restated in its entirety as follows:
"Subject to adjustment in accordance with Section 7.2, a number of shares of Stock equal to the sum of (a) the number of shares of Stock subject to outstanding Awards under the Prior Plan immediately before the Effective Date, (b) the number of shares of Stock authorized and available for issuance of future Awards under the Prior Plan immediately before the Effective Date, and (c) two million nine hundred thousand (2,900,000) shares of Stock are hereby reserved exclusively for issuance upon exercise or payment pursuant to Awards."
2.Except as otherwise specifically set forth herein, all other terms and conditions of the Plan shall remain in full force and effect.
IN WITNESS WHEREOF, the Company has caused this Amendment to be executed on its behalf by its duly authorized officer on Amendment Effective Date.
PREFERRED APARTMENT
COMMUNITIES, INC.
By: /s/ Joel T. Murphy
Name: Joel T. Murphy
Title: President and Chief Executive Officer
[Signature Page to First Amendment to 2019 Stock Incentive Plan]
