As filed with the Securities and Exchange Commission on December 8, 2020

Registration No. 333-                

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

AMERICOLD REALTY TRUST

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Maryland		93-0295215
(State or Other Jurisdiction of Incorporation or Organization)		(I.R.S. Employer Identification Number)

10 Glenlake Parkway

South Tower, Suite 600

Atlanta, Georgia 30328

(Address of Principal Executive Offices) (Zip Code)

 

 

AMERICOLD REALTY TRUST

2020 EMPLOYEE STOCK PURCHASE PLAN

(Full Title of the Plan)

 

 

Fred Boehler

President and Chief Executive Officer

10 Glenlake Parkway

South Tower, Suite 600

Atlanta, Georgia 30328

(972) 686-6500

(Name, Address and Telephone Number, Including Area Code, of Agent for Service)

 

 

Copies to:

C. Spencer Johnson, III

King & Spalding LLP

1180 Peachtree Street

Atlanta, Georgia 30309

(678) 441-1400

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a 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.

 

Large accelerated filer		☒		Accelerated filer		☐
Non-accelerated filer		☐		Smaller reporting company		☐
				Emerging growth company		☐

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

 

Title of Securities to be Registered		Amount to be Registered		Proposed Maximum Offering Price Per Share (2)		Proposed Maximum Aggregate Offering Price (2)		Amount of Registration Fee (2)
Common Shares of Beneficial Interest, $0.01 par value per share		5,000,000 (1)		$34.19		$170,950,000		$18,650.65

(1)	Any additional common shares of Americold Realty Trust to be issued as a result of share dividends, share splits or similar transactions shall be covered by this Registration Statement as provided in Rule 416(a) under the Securities Act of 1933, as amended.

(2)	Calculated in accordance with Rule 457(h) under the Securities Act of 1933 solely for the purpose of calculating the registration fee, which is based on the average of the high and low trading prices of a common share of the registrant on the New York Stock Exchange on December 2, 2020.

 

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The document(s) containing information specified by Part I of this Registration Statement will be sent or given to participants in the Americold Realty Trust 2020 Employee Stock Purchase Plan, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Commission but constitute (along with the documents incorporated by reference into the 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 that Americold Realty Trust (the “Registrant”) has previously filed with the Commission are incorporated herein by reference:

 

•

the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 (the “Annual Report”), which contains the Registrant’s audited financial statements for the Registrant’s last completed fiscal year and which was filed with the Commission on March 2, 2020;

 

•

the Registrant’s Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2020, which was filed with the Commission May  8, 2020, June 30, 2020, which was filed with the Commission on August  10, 2020 and September 30, 2020, which was filed with the Commission on November 6, 2020;

 

•

the Registrant’s Current Reports on Form 8-K filed with the Commission on January  9, 2020, January  10, 2020, February  20, 2020 (Item 8.01 only), March  6, 2020, March  10, 2020, March  30, 2020, April  16, 2020, April  16, 2020, May  15, 2020, May  28, 2020, August  31, 2020, October  13, 2020, October  16, 2020, November  12, 2020, and November 16, 2020;

 

•

the Registrant’s Proxy Statement included with the Schedule 14A of the Registrant filed with the Commission on April 9, 2020; and

 

•

the description of the Registrant’s common shares of beneficial interest, $0.01 par value per share, contained in the Registrant’s Registration Statement on Form 8-A, filed with the Commission on January 17, 2018, including any amendment or report filed for the purpose of updating such description.

All documents filed by the Registrant subsequent to the date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all 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.

Any statement contained in the documents incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified, superseded or replaced for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference in this Registration Statement modifies, supersedes or replaces such statement. Any such statement so modified, superseded or replaced shall not be deemed, except as so modified, superseded or replaced, to constitute a part of this Registration Statement.

No document or information deemed to be furnished and not filed in accordance with rules of the Commission shall be deemed to be incorporated herein by reference unless such document or information expressly provides to the contrary.

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 real estate investment trust to include a provision in its declaration of trust eliminating the liability of its trustees and officers to the trust and its shareholders 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 that is established by a final judgment and is material to the cause of action. The Registrant’s amended and restated declaration of trust (“declaration of trust”) contains a provision that eliminates its trustees’ and officers’ liability to the trust and its shareholders for money damages to the maximum extent permitted by Maryland law.

The Maryland REIT Law, or the MRL, 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 for directors and officers of Maryland corporations. The Maryland General Corporation Law, the MGCL, permits a Maryland 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, or threatened to be made, a party by reason of their service in those or certain other capacities unless it is established that:

 

•

the act or omission of the director or officer was material to the matter giving rise to the proceeding and (a) was committed in bad faith or (b) was the result of active and deliberate dishonesty;

 

•

the director or officer actually received an improper personal benefit in money, property or services; or

 

•

in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.

The MGCL prohibits a Maryland corporation from indemnifying a director or officer who has been adjudged liable in a suit by the corporation or on its behalf or in which the director or officer was adjudged liable on the basis that a personal benefit was improperly received. 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 us or on our behalf, or for a judgment of liability on the basis that personal benefit was improperly received, is limited to expenses.

In addition, the MGCL permits a Maryland 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 and (b) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed if it is ultimately determined that the standard of conduct was not met.

To the maximum extent permitted by Maryland law, the Registrant’s declaration of trust and the Registrant’s amended and restated bylaws (“bylaws”) obligate it to indemnify any individual who is made, or threatened to be made, a party to or witness in a proceeding by reason of his or her service:

 

•

as a trustee, observer on our board of trustees or officer; or

 

•

while a trustee, observer on our board of trustees or officer and at the Registrant’s request, as a director, officer, partner, trustee, member, manager, employee or agent of another real estate investment trust, corporation, limited liability company, partnership, joint venture, trust or employee benefit plan or any other enterprise,

from and against any claim or liability to which he or she may become subject or that he or she may incur by reason of his or her service in any of these capacities, and to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding. The Registrant’s declaration of trust and bylaws also permit it to indemnify and advance expenses to any individual who served any of our predecessors in any of the capacities described above and any employee or agent of the Registrant or any of its predecessors.

The Registrant is insured against liabilities that it may incur by reason of its indemnification of officers and trustees in accordance with its declaration of trust and bylaws. In addition, the trustees and officers of the Registrant are insured at the expense of the Registrant, against certain liabilities that might arise out of their employment and are not subject to indemnification under its declaration of trust and bylaws.

The foregoing summaries are necessarily subject to the complete texts of Section 2-418 of the MGCL, Section 8-301 of the MRL, the Registrant’s declaration of trust and bylaws referred to above and are qualified in their entirety by reference thereto.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.

The exhibits listed below in the “Index to Exhibits” are part of this Registration Statement on Form S-8 and are numbered in accordance with Item 601 of Regulation S-K.

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 percent 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;

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 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 the 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 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.

INDEX TO EXHIBITS

 

Exhibit Number		Description
4.1		Amended and Restated Declaration of Trust of Americold Realty Trust, dated as of January  22, 2018 (incorporated by reference to Exhibit 3.1 to Americold Realty Trust’s Current Report on Form 8-K filed on January 23, 2018 (File No. 001-34723))
4.2		Articles of Amendment (incorporated by reference to Exhibit 3.1 to Americold Realty Trust’s Current Report on Form 8-K filed on March 10, 2020 (File No. 001-34723))
4.3		Amended and Restated Bylaws of Americold Realty Trust (incorporated by reference to Exhibit 3.1 to Americold Realty Trust’s Current Report on Form 8-K filed on May 23, 2019 (File No. 001-34723))
+5.1		Opinion of Venable LLP
10.1		Americold Realty Trust 2020 Employee Stock Purchase Plan (incorporated by reference to Appendix A to the Registrant’s Notice and Proxy Statement dated April 10, 2020 for the Annual Meeting of Shareholders held on May 27, 2020)
+23.1		Consent of Ernst & Young LLP
23.4		Consent of Venable LLP (included as part of Exhibit 5.1)
24.1		Powers of Attorney (included on signature page)
+		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 December 8, 2020.

 

Each of the undersigned officers and directors of Americold Realty Trust hereby constitutes and appoints Fred Boehler and Marc Smernoff, and each of them, his true and lawful attorneys-in-fact and agents, each with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign the Registration Statement of Americold Realty Trust on Form S-8, and any other registration statement relating to the same offering (including any and all amendments thereto (including post-effective amendments)), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities set forth opposite their names and on the date indicated above.

 

Signature		Title
/s/ Fred W. Boehler Fred W. Boehler		President, Chief Executive Officer and Trustee (Principal Executive Officer)
/s/ Marc Smernoff Marc Smernoff		Chief Financial Officer and Executive Vice President (Principal Financial Officer)
/s/ Thomas C. Novosel Thomas C. Novosel		Chief Accounting Officer and Senior Vice President (Principal Accounting Officer)
/s/ George J. Alburger, Jr. George J. Alburger, Jr.		Trustee
/s/ Kelly H. Barrett Kelly H. Barrett		Trustee
/s/Antonio F. Fernandez Antonio F. Fernandez		Trustee
/s/James R. Heistand James R. Heistand		Trustee

Signature		Title
/s/ Michelle M. MacKay		Trustee
Michelle M. MacKay
/s/ David J. Neithercut		Trustee
David J. Neithercut
/s/ Mark R. Patterson		Trustee
Mark R. Patterson
/s/Andrew P. Power		Trustee
Andrew P. Power

Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Atlanta, Georgia, on December 8, 2020.

Americold Realty Trust 2020 Employee Stock Purchase Plan

 

Signature		Title
/s/ James R. Heistand		Chair, Compensation Committee as Plan Administrator
James R. Heistand