-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MDqenBnP4jctuClDNP2QU+R8iy3SDQ1vv6/0YdP1vGkGX+lcAWWDGVw9T5f2FSys ub6FBlBxZcavRVH6wz8ErA== 0000903112-97-001366.txt : 19971110 0000903112-97-001366.hdr.sgml : 19971110 ACCESSION NUMBER: 0000903112-97-001366 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19971107 EFFECTIVENESS DATE: 19971107 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: CAPITAL TRUST CENTRAL INDEX KEY: 0000016387 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 946181186 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-39743 FILM NUMBER: 97710078 BUSINESS ADDRESS: STREET 1: 605 THIRD AVENUE 26TH FLOOR STREET 2: STE 200 CITY: NEW YORK STATE: NY ZIP: 10016 BUSINESS PHONE: 2126550220 MAIL ADDRESS: STREET 1: 605 THIRD AVENUE 26TH FLOOR STREET 2: #200 CITY: NEW YORK STATE: NY ZIP: 10016 FORMER COMPANY: FORMER CONFORMED NAME: CALIFORNIA REAL ESTATE INVESTMENT TRUST DATE OF NAME CHANGE: 19920703 S-8 1 FORM S-8 REGISTRATION STATEMENT UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CAPITAL TRUST (Exact name of registrant as specified in its charter) California 94-6181186 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 605 Third Avenue, 26th Floor 10016 New York, New York (Zip Code) (Address of Principal Executive Offices) Capital Trust 1997 Non-Employee Trustee Share Plan and Capital Trust 1997 Long-Term Incentive Share Plan (Full title of the plan) John R. Klopp Vice Chairman and Chief Executive Officer 605 Third Avenue, 26th Floor New York, New York 10016 (Name and address of agent for service) (212) 655-0220 (Telephone Number, Including Area Code, of Agent for Service) Calculation of Registration Fee
=================================================================================================================================== Proposed maximum Amount of Amount to be offering price per Proposed maximum registration Title of securities to be registered registered share(1) aggregate offering price(1) fee(1) - ----------------------------------------------------------------------------------------------------------------------------------- Class A Common Shares of Beneficial Interest, 2,000,000 $12.44 $24,880,000 $7,539.39 $1.00 Par Value - ----------------------------------------------------------------------------------------------------------------------------------- Total ===================================================================================================================================
(1) Pursuant to paragraphs (c) and (h) of Rule 457 of the Securities Act of 1933, as amended (the "Securities Act"), the proposed maximum offering price per share of such Class A Common Shares is estimated solely for the purpose of determining the registration fee and is based upon the average of the high and low prices per share of the Registrant's Class A Common Shares reported on The New York Stock Exchange on November 5, 1997. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information The documents containing the information specified in this Item will be sent or given to employees or trustees, as the case may be, who have been granted class A common shares of beneficial interest, $1.00 par value, in Capital Trust ("Class A Common Shares") or instruments exercisable for or convertible into Class A Common Shares ("Awards") under the Capital Trust 1997 Long-Term Incentive Share Plan (the "Incentive Share Plan") and the 1997 Non-Employee Trustee Share Plan (the "Trustee Plan" together with the Incentive Share Plan, are collectively referred to as the "Plans"), and are not being filed with, or included in, this Registration Statement on Form S-8 (the "Registration Statement") in accordance with the rules and regulations of the Securities and Exchange Commission (the "Commission"). Item 2. Registration Information and Employee Plan Annual Information The documents containing the information specified in this Item will be sent or given to employees who have been granted Awards under the Plans and are not being filed with, or included in, this Registration Statement in accordance with the rules and regulations of the Commission. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference The following documents, which have been heretofore filed with the Commission by Capital Trust, a California trust (formerly known as California Real Estate Investment Trust) (the "Registrant"), are incorporated by reference in this Registration Statement: (a) The Registrant's annual report on Form 10-K for the fiscal year ended December 31, 1996 (File Number 1-8063), as filed with the Commission on April 15, 1997, as amended by the Registrant's annual report on Form 10-K/A, as filed with the Commission on June 2, 1997. (b) (i) The Registrant's quarterly report on Form 10-Q for the fiscal quarter ended March 31, 1997, as filed with the Commission on May 14, 1997. (ii) The Registrant's quarterly report on Form 10-Q for the fiscal quarter ended June 30, 1997, as filed with the Commission on August 14, 1997. (iii) The Registrant's quarterly report on Form 10-Q/A for the fiscal quarter ended March 31, 1997, as filed with the Commission on October 17, 1997. (iv) The Registrant's current report on Form 8-K, dated January 3, 1997, as filed with the Commission on January 21, 1997. -2- (v) The Registrant's current report on Form 8-K, dated April 10, 1997, as filed with the Commission on April 16, 1997. (vi) The Registrant's current report on Form 8-K, dated February 14, 1997, as filed with the Commission on June 12, 1997. (vii) The Registrant's current report on Form 8-K, dated June 30, 1997, as filed with the Commission on July 15, 1997. (viii) The Registrant's current report on Form 8-K, dated July 15, 1997, as filed with the Commission on July 30, 1997. (ix) The Registrant's current report on Form 8-K, dated August 4, 1997, as filed with the Commission on August 19, 1997. (x) The Registrant's current report on Form 8-K, dated August 13, 1997, as filed with the Commission on August 28, 1997. (xi) The Registrant's current report on Form 8-K, dated September 19, 1997, as filed with the Commission on October 3, 1997. (xii) The Registrant's current report on Form 8-K/A, dated August 4, 1997, as filed with the Commission on October 17, 1997. (xiii) The Registrant's current report on Form 8-K/A, dated August 13, 1997, as filed with the Commission on October 27, 1997. (c) The description of the Registrant's Class A Common Shares contained in the Registrant's Schedule 14A Definitive Proxy Statement under the caption "Description of Capital Shares", as filed with the Commission on June 17, 1997 (File Number 1-8063) pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). 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 have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein 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 other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such 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. -3- Item 5. Interests of Named Experts and Counsel Mr. Martin L. Edelman, a Trustee of the Registrant, is also of Counsel to the law firm of Battle Fowler LLP which is rendering the opinion regarding the legality of the securities being registered in this Registration Statement. As a Trustee, Mr. Edelman has and is, to receive Awards under the Trustee Plan. Item 6. Indemnification of Directors and Officers The Registrant is a California business trust. Section 2.1. of the Registrant's by-laws provides that no Trustee, officer, employee or agent of the Company shall be liable to the Company or to any other Person for any act or omission which he or she reasonably believes is in the best interests of the Company, except for his or her own willful misconduct, bad faith, gross negligence or reckless disregard of duty or his or her failure to act in good faith or in the best interests of the Company. The Trustees, officers, employees and agents of the Company shall be deemed to be acting as Trustees, officers, employees or agents of the Company and not in their own individual capacities when incurring any debts, liabilities or obligations or when taking or omitting any other action on behalf of, or in connection with, the Company. Notwithstanding any provision herein to the contrary, no Trustee, officer, employee or agent of the Company shall be liable for any debt, claim, demand, judgment, decree, liability or obligation of any kind in tort, contract or otherwise of, against or with respect to the Company arising out of any action taken or omitted for or on behalf of the Company, and the Company shall be solely liable therefor and recourse shall be solely to the assets of the Company for the payment or performance thereof. In Section 2.2 of the Registrant's by-laws, the Company agrees to indemnify and hold harmless any Person made a party to any action, suit or proceeding or against whom a claim or liability is asserted by reason of the fact that he, she, his or her testator or intestate was or is a Trustee, officer, employee or agent of the Company or active in such capacity on behalf of the Company against judgments, fines, amounts paid on account thereof (whether in settlement or otherwise) and reasonable expenses, including attorneys' fees, actually and reasonably incurred by him in connection with the defense of such action, suit or proceeding or in connection with any appeal therein, whether or not such suit or action proceeds to judgment or is settled or otherwise brought to a conclusion. Notwithstanding the above, no Person shall be so indemnified or reimbursed for any claim, obligation or liability which shall have been adjudicated to have arisen out of or been based upon such Person's willful misfeasance, bad faith, gross negligence or reckless disregard of duty or for his or her failure to act in good faith in the reasonable belief that his or her action was in the best interests of the Company. Any Person seeking indemnification under this Section 2.2 shall give prompt notice to the Company of the claim, alleged liability, action, suit or proceeding; provided, that the failure to give such notice shall not relieve the Company of its obligations under this Section 2.2, except to the extent that such failure to give notice prejudices the Company. Such rights of indemnification and reimbursement shall be satisfied solely out of the assets of the Company. Section 2.2 states that the rights accruing to any Person shall not exclude any other right to which he or she may be lawfully entitled, nor shall anything contained herein restrict the right of the Company to indemnify or reimburse such Person in any proper case even though not specifically provided for herein, nor shall anything contained herein restrict such rights of a Trustee to contribution as may be available under applicable law. In addition, the Board shall make advance payments for expenses incurred -4- in defending any proceeding in advance of its final disposition in connection with indemnification under Section 2.2 provided that the indemnified Person agrees in writing to reimburse the Company in the event it is subsequently determined that he or she is not entitled to such indemnification. The Company shall have the power to enter into individual indemnification agreements with any Person entitled to be indemnified under Section 2.2, without approval thereof by the Shareholders, provided that the substantive provisions of any such agreement shall not be inconsistent in any material respect with the provisions of this Section 2.2 at the time such agreement is entered into. The terms of any such agreement need not be identical to the terms of any other such agreement and any such agreement which has been entered into may subsequently be amended or changed by mutual agreement of the parties thereto, without approval thereof by the Shareholders, so long as at the time such agreement is entered into or amended or changed, as the case may be, its substantive provisions are not inconsistent in any material respect with the provisions of Section 2.2. The Company shall have the power to use the assets of the Company to establish arrangements for funding its indemnification obligations under Section 2.2, including but not limited to depositing assets in trust funds, obtaining bank letters of credit in favor of indemnified Persons or entities, establishing specific reserve accounts and otherwise funding special self-insurance arrangements for these purposes. ARTICLE FOURTEENTH of the Registrant's amended and restated declaration of trust reads as follows: "The Company may, to the full extent permitted by law, cause the Company to limit the liability of and indemnify any and all Trustees, officers, employees or agents from and against any and all expenses, liabilities or other matters both as to action in his or her official capacity on behalf of the Company and as to action in another capacity while holding such office, and shall continue as to a Person who has ceased to be a Trustee, officer, employee or agent and shall inure to the benefit of the heirs, executors, and administrators of such Person, as provided in any By-Law adopted by a majority of the Board. All Persons dealing with or having any claim against the Trustees or any officer, agent or employee of the Company shall look only to the Company for the payment of any debt, claim, obligation or damage, or of any money or other thing that might become due or payable in any way, whether founded upon contract, tort or otherwise, and no Shareholder shall be personally or individually liable therefor. Each Shareholder shall be entitled to pro rata indemnity from the Company's assets if, contrary to the provisions hereof, such Shareholder is held to any personal liability for any debt, claim, obligation or damage, or of any money or other thing that might become due or payable in any way, whether founded upon contract, tort or otherwise, of the Company. The Board shall maintain liability insurance for the protection of the Company and those connected therewith, and cause any premiums therefor to be paid from Company assets." Item 7. Exemption from Registration Claimed. Not applicable. -5- Item 8. Exhibits. 4.1 1997 Non-Employee Trustee Share Plan, as amended (filed as Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed on July 15, 1997 and is incorporated herein by reference). 4.2 1997 Long-Term Incentive Share Plan, as amended (filed as Exhibit 10.2 to the Registrant's Current Report on Form 8-K filed on July 15, 1997 and is incorporated herein by reference). 5.1 Opinion of Greenberg Glusker Fields Claman & Machtinger LLP regarding the legality of the securities being registered. 23.1 Consent of Coopers & Lybrand, LLP. 23.2 Consent of Greenberg Glusker Fields Claman & Machtinger LLP (contained in Exhibit 5.1). 24.1 Power of Attorney (contained in the signature pages hereto). Item 9. Undertakings. (a) The 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; ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this 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) (ss.230.424(b) of this chapter) 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 this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. -6- (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 hereby 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, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 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. (c) 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 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 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. -7- 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 New York, State of New York, on this 7th day of November, 1997. CAPITAL TRUST By: /s/ John R. Klopp John R. Klopp Vice Chairman and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John R. Klopp and Edward L. Shugrue III his true and lawful attorney-in-fact and agents, each acting alone, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, 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 full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, and hereby ratifies and confirms all his said attorneys-in-fact and agents, each acting alone, or his substitute or substitutes may lawfully do or cause to be done by virtue thereof. 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.
Name Title Date /s/ John R. Klopp Vice Chairman and Chief November 7, 1997 - ----------------------------- John R. Klopp Executive Officer (principal executive officer) /s/ Edward L. Shugrue III Managing Director and Chief November 7, 1997 - -------------------------- Financial Officer Edward L. Shugrue III (principal financial officer)
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Name Title Date /s/ Samuel Zell Chairman of the Board of November 7, 1997 - ------------------------------ Samuel Zell Trustees /s/ Martin L. Edelman Trustee November 7, 1997 - -------------------------- Martin L. Edelman /s/ Craig M. Hatkoff Trustee November 7, 1997 - --------------------------- Craig M. Hatkoff /s/ Gary R. Garrabrant Trustee November 7, 1997 - --------------------------- Gary R. Garrabrant /s/ Sheli Z. Rosenberg Trustee November 7, 1997 - --------------------------- Sheli Z. Rosenberg /s/ Lynne B. Sagalyn Trustee November 7, 1997 - ---------------------------- Lynne B. Sagalyn /s/ Jeffrey A. Altman Trustee November 7, 1997 - ----------------------------- Jeffrey A. Altman
-9- EXHIBIT INDEX Exhibits 4.1 1997 Non-Employee Trustee Share Plan (filed as Exhibit 10.2 to the Registrant's Current Report on Form 8-K filed on July 15, 1997 and is incorporated herein by reference) 4.2 1997 Long-Term Incentive Share Plan (filed as Exhibit 10.1 to the Registrant's Current Report on Form 8-K filed on July 15, 1997 and is incorporated herein by reference) 5.1 Opinion of Greenberg Glusker Fields Claman & Machtinger LLP regarding the legality of the securities being registered 23.1 Consent of Coopers & Lybrand, LLP 23.2 Consent of Greenberg Glusker Fields Claman & Machtinger LLP (contained in Exhibit 5.1) 24.1 Power of Attorney (contained in the signature page hereof) EX-5.1 2 OPINION Exhibit 5.1 [GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP Letterhead] November 6, 1997 Capital Trust 605 Third Avenue New York, New York 10016 Re: 1997 Non-Employee Trustee Share Plan and 1997 Long-Term Incentive Share Plan --------------------------------------- Ladies and Gentlemen: At your request, we have examined the Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") in connection with the registration under the Securities Act of 1933, as amended, of 2,000,000 class A common shares of beneficial interest, $1.00 par value (the "Shares"), in Capital Trust that have been or will be granted, or issued upon the exercise or conversion of instruments granted, under the Capital Trust 1997 Long-Term Incentive Share Plan and the 1997 Non-Employee Trustee Share Plan (collectively, the "Plans"). These Shares are authorized and unissued securities to be issued and sold in the manner set forth in the Plans. As California counsel for Capital Trust, we are familiar with the proceedings taken and proposed to be taken in connection with the adoption of the Plans. We are of the opinion that, when issued and sold in the manner set forth in the Plans, all of the Shares will be legally and validly issued and outstanding, fully paid and non-assessable. 652163.1 Capital Trust November 6, 1997 Page 2 We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement and to the use of our name therein. Very truly yours, GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 652163.1 EX-23.1 3 CONSENT Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference the registration statement of Capital Trust (f/k/a California Real Estate Investment Trust) on Form S-8 (File No. ____________), of our report dated February 14, 1997, on our audits of the consolidated financial statements California Real Estate Investment Trust and its subsidiary as of December 31, 1996 and 1995 and for the years ended December 31, 1996, 1995 and 1994. San Francisco, California Coopers & Lybrand LLP November 4, 1997 652301.1 -----END PRIVACY-ENHANCED MESSAGE-----