iretforms-811192008.htm
As
filed with the Securities and Exchange Commission on November 20,
2008
Registration
No. ___-_____
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_______________
Form
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
_______________
Investors
Real Estate Trust
(Exact
name of issuer as specified in its charter)
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North
Dakota
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45-0311232
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(State
or other jurisdiction of
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(I.R.S. Employer
Identification No.)
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incorporation
or organization)
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12
Main Street South
Minot,
ND 58701
(701)
837-4738
(Address,
Including Zip Code, and Telephone Number, Including Area Code,
of
Registrant’s Principal Executive Offices)
2008
INCENTIVE AWARD PLAN OF INVESTORS REAL ESTATE TRUST
AND
IRET PROPERTIES, A NORTH DAKOTA LIMITED PARTNERSHIP
(Full
Title of the Plan)
_______________
Copies
to:
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Timothy
Mihalick
Senior
Vice President and Chief Operating Officer
Investors
Real Estate Trust
12
Main Street South
Minot,
North Dakota 58701
(701)
837-4738
(Name,
Address and Telephone Number
of
Agent for Service)
Karin
Wentz, Esq.
Associate
General Counsel
10050
Crosstown Circle, Suite 105
Eden
Prairie, MN 55344
(952)
401-6600
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_______________
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):
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Large
accelerated filer [ ]
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Accelerated
filer [ X ]
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Non-accelerated
filer [ ]
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Smaller
reporting company [ ]
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CALCULATION
OF REGISTRATION FEE
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Title
of securities to be
Registered
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Amount
to be
Registered
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Proposed
maximum
Offering
price (1)
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Proposed
maximum
Aggregate
offering
price(1)
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Amount
of
Registration
fee
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Common
shares of beneficial interest, no par value
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2,000,000
shares(2)
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$8.54
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$17,080,000
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$671.25
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(1)
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Estimated
solely for the purpose of calculating the registration fee, in accordance
with paragraphs (c) and (h) of Rule 457 under the Securities Act, using
the average of the high and low prices of the common shares of beneficial
interest of the Company on the NASDAQ Global Market on November 17, 2008
(within 5 business days prior to filing this registration
statement).
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(2)
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Represents
the number of shares of the Company’s common shares of beneficial interest
issuable under the above-named plan (the “Plan”). This
registration statement also covers an indeterminate number of additional
shares issuable to prevent dilution in the event of stock splits, stock
dividends or similar adjustments of the Company’s outstanding common
shares of beneficial interest.
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This
Registration Statement on Form S-8 is filed by Investors Real Estate Trust, a
North Dakota real estate investment trust (the “Company” or the “Registrant”),
to register 2,000,000 of the Company’s common shares of beneficial interest, no
par value, that may be issued pursuant to the 2008 Incentive Award Plan of
Investors Real Estate Trust and IRET Properties, a North Dakota Limited
Partnership.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Items
1 and 2. Plan Information and Registrant information and Employee
Plan Annual Information.
Not
required to be filed with this Registration Statement.*
* The
documents containing the information specified in Part I of Form S-8 have been
or will be sent or given to participants in the Plan as specified by Rule
428(b)(1) promulgated by the Securities and Exchange Commission (the
“Commission”) under the Securities Act of 1933, as amended. Such
documents are not being filed with the Commission, but constitute (along with
the documents incorporated by reference into this Registration Statement
pursuant to Item 3 of Part II hereof) 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, which were filed by the Company with the Commission
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, are incorporated herein by reference:
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(a)
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the
Company’s Annual Report on Form 10-K for the fiscal year ended April 30,
2008, filed with the Commission on July 14,
2008;
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(b)
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The
Company’s Quarterly Report on Form 10-Q for the quarterly period ended
July 31, 2008, filed with the Commission on September 9,
2008;
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(c)
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The
Company’s Current Report on Form 8-K filed with the Commission on May 20,
2008; and
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(d)
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The
description of the Company’s common shares of beneficial interest
contained in the Company’s Registration Statement on Form 10 (File No.
0-14851) dated July 29, 1986, as amended by the Amended Registration
Statement on Form 10, dated December 17, 1986, and the Second Amended
Registration Statement on Form 10, dated March 12,
1987.
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All
documents subsequently filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment that indicates that all securities offered have been
sold or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated herein by reference shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is, or is deemed to be, incorporated by reference herein
modifies or supersedes such 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 Trustees and Officers.
Limitation of Liability and
Indemnification. The Company’s Third Restated Declaration of Trust
provides that the Company will indemnify members of its Board of Trustees to the
fullest extent permitted by law in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she was a member of the Board of
Trustees or is or was serving at the Company’s request as a director, trustee,
officer, partner, manager,
member,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust, limited liability company, other enterprise or employee benefit
plan, from all claims and liabilities to which such person may become subject by
reason of service in such capacity, and further the Company will pay or
reimburse reasonable expenses (including without limitation attorney’s fees), as
such expenses are incurred, of each member of the Company’s Board of Trustees in
connection with any such proceedings.
The
Company’s Third Restated Declaration of Trust further provides that the Company
will indemnify each of the Company’s officers and employees, and will have the
power to indemnify each of the Company’s agents, to the fullest extent permitted
by North Dakota law, as amended from time to time, in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
was the Company’s officer, employee or agent or is or was serving at the
Company’s request as a director, trustee, officer, partner, manager, member,
employee or agent of another foreign or domestic corporation, partnership, joint
venture, trust, limited liability company, other enterprise or employee benefit
plan, from all claims and liabilities to which such person may become subject by
reason of service in such capacity and will pay or reimburse reasonable
expenses, as such expenses are incurred, of each officer, employee or agent in
connection with any such proceedings.
For
purposes of providing indemnification for members of the Company’s Board of
Trustees, and all of the Company’s officers, employees and agents, the Third
Restated Declaration of Trust provides that the Company will have the authority
to enter into insurance or other arrangements, with persons or entities that are
regularly engaged in the business of providing insurance coverage, to indemnify
all of the members of the Board of Trustees, and all of the Company’s officers,
employees and agents against any and all liabilities and expenses incurred by
them by reason of their being members of the Company’s Board of Trustees, or
officers, employees or agents of the Company, whether or not the Company would
otherwise have the power to indemnify such persons against such liability.
Without limiting the Company’s power to procure or maintain any kind of
insurance or other arrangement, the Third Restated Declaration of Trust provides
that the Company may, for the benefit of persons indemnified, (i) create a trust
fund, (ii) establish any form of self-insurance, (iii) secure the Company’s
indemnity obligation by grant of any security interest or other lien on Company
assets, or (iv) establish a letter of credit, guaranty or surety
arrangement. Any such insurance or other arrangement may be procured,
maintained or established within the Company or with any insurer or other person
deemed appropriate by the Board of Trustees regardless of whether all or part of
the stock or other securities thereof are owned in whole or in part by the
Company. In the absence of fraud, the judgment of the Board of Trustees as
to the terms and conditions of insurance or other arrangement and the identity
of the insurer or other person participating in any arrangement will be
conclusive, and such insurance or other arrangement will not be subject to
voidability, nor subject the members of the Board of Trustees approving such
insurance or other arrangement to liability, on any ground, regardless of
whether the members participating in and approving such insurance or other
arrangement will be beneficiaries thereof. The Company currently maintains
insurance covering members of the Board and officers against liability as a
result of their actions or inactions on the Company’s behalf.
With the
exception of indemnification and insurance provisions set forth above, there is
currently no other statute, charter provision, by-law, contract or other
arrangement under which a member of the Company’s Board of Trustees or an
employee is insured or indemnified in any manner against liability that he or
she may incur in his or her capacity as a member of the Company’s Board of
Trustees or as an employee.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as
amended (the “Securities Act”), may be permitted to trustees, 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.
Item
7. Exemption from Registration Claimed.
Not Applicable.
Item
8. Exhibits.
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Exhibit
No.
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Description
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5.1
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Opinion
of Pringle & Herigstad, P.C. (filed herewith)
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10.1*
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2008
Incentive Award Plan of Investors Real Estate Trust and IRET Properties, a
North Dakota Limited Partnership
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23.1
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Consent
of Deloitte & Touche LLP (filed herewith)
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23.2
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Consent
of Pringle & Herigstad, P.C. (included in Exhibit
5.1)
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24.1
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Power
of Attorney (included on signature
page)
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* Incorporated
by reference to Appendix A to the Company’s proxy statement for the 2008 Annual
Meeting of Shareholders, filed with the Commission on August 1,
2008.
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; and
(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;
provided,
however, that paragraphs (a)(1)(i) and (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 registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference 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 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 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 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
For the
Registrant: 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 Minot, North Dakota, on November 19, 2008.
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INVESTORS
REAL ESTATE TRUST
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By:
/s/ Thomas A. Wentz, Sr.
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Name: Thomas
A. Wentz, Sr.
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Title:
President & Chief Executive Officer
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(Principal
Executive Officer)
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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 on behalf of the Registrant. Each trustee whose signature
appears below, hereby appoints Thomas A. Wentz, Sr. and Diane K. Bryantt, and
each of them severally, as his attorney-in-fact, to sign in his name and on his
behalf, as a trustee of the Registrant, and to file with the Commission any and
all Amendments (including post-effective amendments and amendments thereto) to
this Registration Statement, with all exhibits and other documents relating
thereto and any Registration Statement relating to any offering made pursuant to
this Registration Statement and hereby ratify and confirm all that such
attorney-in-fact or his or her substitute shall lawfully do or cause to be done
by virtue hereof.
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Signature
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Title
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Date
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/s/
Jeffrey L. Miller
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Trustee
and Chairman
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November
19, 2008
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Jeffrey
L. Miller
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/s/
Stephen
L. Stenehjem
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Trustee
and Vice Chairman
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November
19, 2008
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Stephen
L. Stenehjem
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/s/
John D. Stewart
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Trustee
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November
19, 2008
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John
D. Stewart
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/s/
Patrick G. Jones
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Trustee
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November
19, 2008
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Patrick
G. Jones
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/s/
C.W. “Chip” Morgan
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Trustee
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November
19, 2008
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C.W.
“Chip” Morgan
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/s/
W. David Scott
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Trustee
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November
19, 2008
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W.
David Scott
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/s/
John T. Reed
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Trustee
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November
19, 2008
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John
T. Reed
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/s/
Thomas A. Wentz, Jr.
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Trustee,
Senior Vice President—Asset
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November
19, 2008
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Thomas
A. Wentz, Jr.
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Management
and Finance
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/s/
Timothy P. Mihalick
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Trustee,
Senior Vice President and
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November
19, 2008
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Timothy
P. Mihalick
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Chief
Operating Officer
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/s/
Thomas A. Wentz, Sr.
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President
and Chief Executive
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November
19, 2008
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Thomas
A. Wentz, Sr.
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Officer
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/s/
Diane K. Bryantt
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Senior
Vice President and
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November
19, 2008
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Diane
K. Bryantt
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Chief
Financial Officer
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EXHIBIT
INDEX
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Exhibit
Number:
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Description
of Exhibit
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5.1
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Opinion
of Pringle & Herigstad, P.C. (filed herewith)
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10.1*
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2008
Incentive Award Plan of Investors Real Estate Trust and IRET Properties, a
North Dakota Limited Partnership
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23.1
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Consent
of Deloitte & Touche LLP (filed herewith)
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23.2
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Consent
of Pringle & Herigstad, P.C. (included in Exhibit
5.1)
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24.1
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Power
of Attorney (included on signature
page
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* Incorporated
by reference to Appendix A to the Company’s proxy statement for the 2008 Annual
Meeting of Shareholders, filed with the Commission on August 1,
2008.
Opinion
of Pringle & Herigstad, P.C.
November
20, 2008
Investors
Real Estate Trust
12 Main
Street South
Minot,
North Dakota 58701
Re: Registration Statement on
Form S-8
Ladies
and Gentlemen:
We have
acted as special counsel for Investors Real Estate Trust, a North Dakota real
estate investment trust (the “Company”), in connection with the registration of
2,000,000 of the Company’s common shares of beneficial interest, no par value
(the “Shares”), issuable under the 2008 Incentive Award Plan of Investors Real
Estate Trust and IRT Properties, a North Dakota Limited Partnership (the
“Plan”), and registered under the above-referenced Registration Statement on
Form S-8 (the “Registration Statement”) being filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the
“Act”).
In this
connection, and as a basis for the opinion hereinafter set forth, we have
examined originals, or copies certified or otherwise identified to our
satisfaction, of certain of the corporate records of the Company, including its
Articles of Amendment and Third Restated Declaration of Trust, its Third
Restated Trustees’ Regulations (Bylaws), and minutes of meetings of its trustees
and shareholders, relating to, among other matters, the approval of the
Plan. We have also examined the Plan and the Registration Statement,
together with the exhibits thereto, and such other documents as we have deemed
necessary for the purpose of expressing the opinion contained
herein.
In
expressing the opinion set forth below, we have assumed the
following: that all documents submitted to us as originals are
authentic, that 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, that all documents
submitted to us as certified or photostatic copies conform to the original
documents, and that all signatures on all documents are genuine
Based
upon the foregoing, and subject to the assumptions, limitations and
qualifications stated herein, we are of the opinion that, upon the effectiveness
of the Form S-8, the Shares, when issued in accordance with the terms of the
Plan and any award agreement utilized under the Plan, will be validly issued,
fully paid and non-assessable.
We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of our name therein. In giving this consent,
we do not thereby admit that we are within the category of persons whose consent
is required under Section 7 of the Act and the rules and regulations
thereunder.
Very
truly yours,
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PRINGLE
& HERIGSTAD P.C.
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/s/
David Hogue
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David
Hogue
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CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form
S-8 of our reports dated July 11, 2008, relating to the consolidated financial
statements and financial statement schedules of Investors Real Estate Trust, and
the effectiveness of Investors Real Estate Trust’s internal control over
financial reporting, appearing in the Annual Report on Form 10-K of Investors
Real Estate Trust for the year ended April 30, 2008.
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DELOITTE
& TOUCHE LLP
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Minneapolis,
Minnesota
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November
20, 2008
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