-----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, WKiTwOdE0d9S8CTi8D/QqABtROpkkr0z3AqfEv0I31R0kav4Ivpw95m6EUAPs1GB jxVInEdRMuxO5PCX8B12zA== 0000950146-95-000656.txt : 19951103 0000950146-95-000656.hdr.sgml : 19951103 ACCESSION NUMBER: 0000950146-95-000656 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19951101 EFFECTIVENESS DATE: 19951120 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: MGI PROPERTIES CENTRAL INDEX KEY: 0000068330 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 046268740 STATE OF INCORPORATION: MA FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-63901 FILM NUMBER: 95586586 BUSINESS ADDRESS: STREET 1: 30 ROWES WHARF CITY: BOSTON STATE: MA ZIP: 02110 BUSINESS PHONE: 6173305335 MAIL ADDRESS: STREET 1: 30 ROWES WHARF CITY: BOSTON STATE: MA ZIP: 02110 FORMER COMPANY: FORMER CONFORMED NAME: MORTGAGE GROWTH INVESTORS DATE OF NAME CHANGE: 19880225 FORMER COMPANY: FORMER CONFORMED NAME: EASTERN SHOPPING CENTERS INC DATE OF NAME CHANGE: 19711121 S-8 1 As filed with the Securities and Exchange Commission on November 1, 1995 Registration No. 33- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 MGI PROPERTIES - ------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Massachusetts - ------------------------------------------------------------------------------- (State or other jurisdiction of incorporation or organization) 04-6268740 - ------------------------------------------------------------------------------- (I.R.S. employer identification no.) 30 Rowes Wharf, Boston, Massachusetts 02110 - ------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Common Share Awards and Options to Purchase Common Shares Granted to Advisors - ------------------------------------------------------------------------------- (Full title of the plans) W. Pearce Coues Chairman of the Board of Trustees MGI Properties 30 Rowes Wharf Boston, Massachusetts 02110 - ------------------------------------------------------------------------------- (Name and address of agent for service) (617) 330-5335 - ------------------------------------------------------------------------------- (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE =============================================================================== Proposed Title of each Proposed maximum class of maximum aggregate Amount of Securities to Amount to be offering price offering registration be registered registered(1) per share(2) price(2) fee - ------------- ------------- -------------- --------- ------------- - ------------------------------------------------------------------------------- Common Shares, par value $1.00 per share 22,880 $15.50 $354,640.00 $122.29 =============================================================================== (1) Represents the sum of (i) 500 Common Shares awarded to a former employee of the Registrant in December 1988, (ii) 10,380 Common Shares awarded to certain employees of the Registrant in December 1994 and (iii) a maximum of 12,000 Common Shares that may be acquired pursuant to options to purchase Common Shares granted to advisors of the Registrant (the "Advisors' Options"). Pursuant to Rule 416, this registration statement also covers such indeterminable additional securities as may become issuable as a result of any future anti-dilution adjustment in accordance with the terms of the Advisors' Options. (2) Estimated solely for purposes of calculating the registration fee and computed in accordance with Rule 457(c) promulgated under the Securities Act of 1933, as amended, using the average of the high and low prices of the Common Shares reported on the New York Stock Exchange, Inc. Composite Tape on October 30, 1995. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The documents listed below are hereby incorporated by reference in this Registration Statement: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended November 30, 1994; (b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters ended August 31, 1995, May 31, 1995 and February 28, 1995; (c) The description of the Registrant's Common Shares, $1.00 par value, contained in the Registrant's Registration Statements on Form 8-A filed on March 11, 1988 and June 27, 1989, respectively. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a post-effective amendment which indicates that all Common Shares offered hereby have been sold or which deregisters all Common Shares offered hereby then remaining unsold, are deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The validity of the Common Shares offered hereby will be passed upon for the Registrant by the firm of Olshan Grundman Frome & Rosenzweig LLP, 505 Park Avenue, New York, New York 10022. Certain members of Olshan Grundman Frome & Rosenzweig LLP own an aggregate of 8,630 Common Shares and hold options to purchase an aggregate of 33,400 Common Shares. The Common Shares underlying 12,000 of the options held by members of Olshan Grundman Frome & Rosenzweig LLP are being registered by this Registration Statement. ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS. Section 5.3 of the Trust's Second Amended and Restated Declaration of Trust provides as follows: II-1 The Trust shall indemnify each of its Trustees, officers, employees and agents (including any Person who serves at its written request as director, officer, partner, trustee or the like of another organization in which it has any interest as a shareholder, creditor or otherwise), against all liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, counsel fees, reasonably incurred by him in connection with the defense or disposition of any action, suit or proceeding, whether civil or criminal, in which he may be involved or with which he may be threatened, while acting as Trustee or as an officer, employee or agent, of the Trust or the Trustees, as the case may be, or thereafter, by reason of his being or having been such a Trustee, officer, employee or agent, except with respect to any matter as to which he shall have been adjudicated to have acted in bad faith or with willful misconduct or reckless disregard of his duties or gross negligence or not to have acted in good faith in the reasonable belief that his action was in the best interests of the Trust; provided, however, that a Trustee adjudicated to have been grossly negligent (i.e., found to have breached his fiduciary duty of care) may nevertheless be indemnified pursuant to the provisions of this paragraph consistent with the provisions of Section 5.2; and provided, further, however, that as to any matter disposed of by a compromise payment by such Trustee, officer, employee or agent, pursuant to a consent decree or otherwise, no indemnification either for said payment or for any other expenses shall be provided unless such compromise shall be approved as in the best interest of the Trust by a majority of the disinterested Trustees or the Trust shall have received a written opinion of independent legal counsel to the effect that such Trustee, officer, employee or agent appears to have acted in good faith in the reasonable belief that his action was in the best interests of the Trust. The rights accruing to any Trustee, officer, employee or agent under these provisions shall not exclude any other right to which he may be lawfully entitled; provided, however, that no Trustee, officer, employee or agent may satisfy any right of indemnity or reimbursement granted herein or to which he may be otherwise entitled except out of the Trust Property, and no Shareholder shall be personally liable to any Person with respect to any claim for indemnity or reimbursement or otherwise. The Trustees may make advance payments in connection with indemnification under this Section 5.3, provided that the indemnified Trustee, officer, employee or agent shall have given a written undertaking to reimburse the Trust in the event it is subsequently determined that he is not entitled to such indemnification. Any action taken by or conduct on the part of the Adviser, a Trustee, officer, employee or agent of the Trust in conformity with or in good faith reliance upon the provisions of Section 2.16 or 3.4 hereof shall not, for purposes of this Declaration of Trust (including, without limitation, Sections 5.1 and 5.2 hereof and this Section 5.3), constitute bad faith, willful misconduct, gross II-2 negligence or reckless disregard of his duties, or failure to act in good faith in the reasonable belief that his action was in the best interests of the Trust. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. The following instruments and documents are included as exhibits to this Registration Statement. Exhibit Number Description ------- ----------- 4 Form of Non-qualified Stock Option Agreement, incorporated by reference to the Trust's Registration Statement on Form S-8 filed on July 8, 1993 (File No. 33-65844). 5 Opinion of Olshan Grundman Frome & Rosenzweig LLP. 23.1 Consent of Olshan Grundman Frome & Rosenzweig LLP (included in their opinion filed as Exhibit 5). 23.2 Consent of KPMG Peat Marwick LLP 24 Power of Attorney (included on the Signature Page to this Registration Statement). ITEM 9. UNDERTAKINGS. The undersigned registrant hereby undertakes: a) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. b) 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. c) 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. II-3 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. 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 Securities and Exchange 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. II-4 SIGNATURES 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 the City of Boston, County of Suffolk, Commonwealth of Massachusetts, on October 31, 1995. MGI PROPERTIES By: /s/ W. Pearce Coues ------------------- W. Pearce Coues Chairman of the Board of Trustees and Chief Executive Officer POWER OF ATTORNEYS AND SIGNATORIES Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. Each of the undersigned officers and Trustees of MGI Properties hereby constitutes and appoints W. Pearce Coues, Robert Ware and Phillip C. Vitali and each of them singly, as true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him in his name 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 other documents in connection therewith, with the Securities and Exchange Commission and to prepare any and all exhibits thereto, and other documents in connection therewith, and to make any applicable state securities law or blue sky filings, granting unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite or necessary to be done to enable MGI Properties to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, as fully to 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 their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Signatures Capacity Date /s/ W. Pearce Coues Chairman of the Board of October 31, 1995 - -------------------------- Trustees and Chief W. Pearce Coues Executive Officer (Principal Executive Officer) /s/ Phillip C. Vitali Executive Vice President October 31, 1995 - -------------------------- and Treasurer (Principal Phillip C. Vitali Financial Officer) /s/ David P. Morency Controller (Principal October 31, 1995 - -------------------------- Accounting Officer) David P. Morency /s/ George S. Bissell Trustee October 31, 1995 - -------------------------- George S. Bissell /s/ Herbert D. Conant Trustee October 31, 1995 - -------------------------- Herbert D. Conant /s/ Francis P. Gunning Trustee October 31, 1995 - -------------------------- Francis P. Gunning /s/ Colin C. Hampton Trustee October 31, 1995 - -------------------------- Colin C. Hampton /s/ George M. Lovejoy, Jr. Trustee October 31, 1995 - -------------------------- George M. Lovejoy, Jr. /s/ Rodger P. Nordblom Trustee October 31, 1995 - -------------------------- Rodger P. Nordblom
II-5 EX-5 2 EXHIBIT 5 OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP 505 Park Avenue New York, New York 10022 October 31, 1995 MGI Properties 30 Rowes Wharf Boston, Massachusetts 02110 Re: MGI Properties (the "Trust") Ladies and Gentlemen: You have requested our opinion in connection with the registration statement on Form S-8 (the "Registration Statement") being filed by you with the Securities and Exchange Commission for the purpose of registering under the Securities Act of 1933, as amended (the "Act"), 22,880 of the Trust's common shares, par value $1.00 per share (the "Shares"), representing the sum of (i) 500 Shares awarded to a former employee of the Trust, (ii) 10,380 Shares awarded to certain present employees of the Trust and (iii) 12,000 Shares that may be acquired pursuant to options to purchase Shares granted to advisors of the Trust. We advise you that we have examined originals or copies certified or otherwise identified to our satisfaction of the Declaration of Trust and By-laws of the Trust and the amendments to the foregoing, minutes of meetings of the Board of Trustees and shareholders of the Trust, the Registration Statement and such other documents, instruments and certificates of officers and representatives of the Trust and public officials and we have made such examination of law as we have deemed appropriate as the basis for the opinion hereinafter expressed. In making such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as certified or photostatic copies. Based on the foregoing, we are of the opinion that (i) the aggregate of 10,880 Shares awarded to a former employee and present employees of the Trust have been duly and validly issued, and are fully paid and non-assessable and (ii) the 12,000 Shares issuable upon the exercise of options granted to advisors of the Trust, when issued and paid for in accordance with the terms and conditions set forth in the option agreements relating to such grants, will be duly and validly issued, fully paid and non-assessable. 70186.2 We advise you that certain members of the firm own an aggregate of 8,630 Shares and hold options to purchase an aggregate of 33,400 Shares. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP 70186.2 EX-23.2 3 EXHIBIT 23.2 Consent of Independent Auditors The Board of Trustees MGI Properties: We consent to incorporation by reference in the registration statement on Form S-8 of MGI Properties of our report dated December 30, 1994, relating to the consolidated balance sheets of MGI Properties and subsidiaries as of November 30, 1994 and 1993, and the related consolidated statements of earnings, changes in shareholders' equity, and cash flows for each of the years in the three-year period ended November 30, 1994, and all related schedules, which report appears in the November 30, 1994 annual report on Form 10-K of MGI Properties. KPMG Peat Marwick LLP Boston, Massachusetts October 31, 1995 -----END PRIVACY-ENHANCED MESSAGE-----