-----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, SLuraL44qRNU5DGU/4ZZi3eyi2gyeO+IrYgVscF5Am4AY9VNy9PVw6fhk0S02eH0 EDCsqBbqQ0aj3DVICXo8gw== 0000950131-97-004377.txt : 19970711 0000950131-97-004377.hdr.sgml : 19970711 ACCESSION NUMBER: 0000950131-97-004377 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970710 EFFECTIVENESS DATE: 19970710 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: SECURITY CAPITAL PACIFIC TRUST CENTRAL INDEX KEY: 0000080737 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 746056896 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-31033 FILM NUMBER: 97639005 BUSINESS ADDRESS: STREET 1: 7777 MARKET CENTER AVE CITY: EL PASO STATE: TX ZIP: 79912 BUSINESS PHONE: 9158773900 MAIL ADDRESS: STREET 1: 7777 MARKET CENTER AVE CITY: EL PASO STATE: TX ZIP: 79912 FORMER COMPANY: FORMER CONFORMED NAME: PROPERTY TRUST OF AMERICA DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: EL PASO REAL ESTATE INVESTMENT TRUST DATE OF NAME CHANGE: 19700108 S-8 1 FORM S-8 Registration No. 333-_______ As filed with the Securities and Exchange Commission on July 10, 1997 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 SECURITY CAPITAL PACIFIC TRUST (Exact Name of Registrant as Specified in its Charter) Maryland (State or Other Jurisdiction of Incorporation or Organization) 74-6056896 (I.R.S. Employer Identification No.) 7777 Market Center Avenue, El Paso, Texas 79912 (Address of Principal Executive Offices) (Zip Code) PROPERTY TRUST OF AMERICA SHARE OPTION PLAN FOR OUTSIDE TRUSTEES (Full Title of the Plan) Jeffrey A. Klopf, Secretary Security Capital Pacific Trust 7777 Market Center Avenue El Paso, Texas 79912 (Name and Address of Agent for Service) (915) 877-3900 (Telephone Number, including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE ================================================================================================= Proposed Maximum Proposed Maximum Amount of Title of Securities Amount to Be Offering Price Aggregate Registration to Be Registered Registered/1/ Per Share/2/ Offering Price/2/ Fee - ------------------------------------------------------------------------------------------------- Common Shares of Beneficial Interest, $1.00 par value 30,000 Shares $16.488667 $494,660 $150 =================================================================================================
/1/ Also registered hereby are an indeterminate number of additional Common Shares of Beneficial Interest that may become issuable pursuant to the anti-dilution provisions of the plan. /2/ In accordance with Rule 457(h)(1), the offering price of Common Shares of Beneficial Interest currently subject to options was computed upon the basis of the average exercise price. The number of such shares and respective per share exercise prices are as follows: 2,000 shares at $8.46; 6,000 shares at $16.34; 6,000 shares at $16.71; 8,000 shares at $15.59 and 8,000 shares at $19.34. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents, which have heretofore been filed by the registrant with the Securities and Exchange Commission (File No. 1-10272) are incorporated by reference herein and shall be deemed to be a part hereof: (a) The registrant's Annual Report on Form 10-K for the year ended December 31, 1996; (b) The registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997; (c) The registrant's Current Reports on Form 8-K filed January 27, 1997, February 20, 1997, March 26, 1997 and May 29, 1997; (d) The description of the registrant's Common Shares of Beneficial Interest contained in the registrant's registration statement on Form 8-A; and (e) The description of the registrant's preferred share purchase rights contained in the registrant's registration statement on Form 8-A. 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, as amended (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 securities then remaining unsold, shall be deemed to be incorporated herein by reference and shall be deemed 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 issuance of the Common Shares of Beneficial Interest registered hereunder will be passed upon for the registrant by the law firm of Mayer, Brown & Platt, Chicago, Illinois. Mayer, Brown & Platt has represented and is currently representing the registrant and certain of its affiliates. Item 6. Indemnification of Directors and Officers. Article 4, Section 12, of the registrant's Restated Declaration of Trust provides as follows with respect to indemnification of trustees: "The Trust shall indemnify and hold harmless each Trustee from and against all claims and liabilities, whether they proceed to judgment or are settled, to which such Trustee may become subject by reason of his being or having been a Trustee, or by reason of any action alleged to have been taken or omitted by him as Trustee, and shall reimburse him for all legal and other expenses reasonably incurred by him in connection with any such claim or liability, including any claim or liability arising under the provisions of federal or state securities laws; provided, however, that no Trustee shall be indemnified or reimbursed under the foregoing provisions in relation to any matter unless it shall have been adjudicated that his action or omission did not constitute willful misfeasance, bad faith or gross negligence in the conduct of his duties, or, unless, in the absence of such an adjudication, the Trust shall have received a written opinion from independent counsel, approved by the Trustees, to the effect that if the matter of II-1 willful misfeasance, bad faith or gross negligence in the conduct of duties had been adjudicated, it would have been adjudicated in favor of such Trustee. The rights accruing to a Trustee under these provisions shall not exclude any other right to which he may be lawfully entitled, nor shall anything herein contained restrict the right of the Trust to indemnify or reimburse such Trustee in any proper cause even though not specifically provided for herein." Article 8, Section 1 of the registrant's Restated Declaration of Trust provides as follows with respect to the limitation of liability of trustees and officers and indemnification: "A Trustee or officer of the Trust shall not be liable for monetary damages to the Trust or its shareholders for any act or omission in the performance of his duties unless: (1) The Trustee or officer actually received an improper benefit in money, property or services (in which case, such liability shall be for the amount of the benefit in money, property or services actually received); (2) The Trustee's or officer's action or failure to act was the result of active and deliberate dishonesty and was material to the cause of action being adjudicated; (3) The Trustee's or officer's action or failure to act constitutes willful misconduct or deliberate recklessness; or (4) Such liability to the Trust is specifically imposed upon Trustees or officers by statute." Article 8, Section 6 of the registrant's Restated Declaration of Trust provides as follows with respect to the indemnification of trustees and officers: "Notwithstanding any other provisions of this Restated Declaration of Trust, the Trust, for the purpose of providing indemnification for its Trustees and officers, shall have the authority, without specific shareholder approval, to enter into insurance or other arrangements, with persons or entities which are not regularly engaged in the business of providing insurance coverage, to indemnify all Trustees and officers of the Trust against any and all liabilities and expenses incurred by them by reason of their being Trustees or officers of the Trust, whether or not the Trust would otherwise have the power under this Restated Declaration of Trust or under Maryland law to indemnify such persons against such liability. Without limiting the power of the Trust to procure or maintain any kind of insurance or other arrangement, the Trust may, for the benefit of persons indemnified by it, (i) create a trust fund, (ii) establish any form of self-insurance, (iii) secure its indemnity obligation by grant of any security interest or other lien on the assets of the corporation, 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 Trust or with any insurer or other person deemed appropriate by the Board of Trustees regardless of whether all or part of the shares or other securities thereof are owned in whole or in part by the Trust. 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 shall be conclusive, and such insurance or other arrangement shall not be subject to voidability, nor subject the Trustees approving such insurance or other arrangement to liability, on any ground, regardless of whether Trustees participating and approving such insurance or other arrangement shall be beneficiaries thereof." The registrant has entered into indemnity agreements with each of its officers and trustees which provide for reimbursement of all expenses and liabilities of such officer or trustee, arising out of any lawsuit or claim against such officer or trustee due to the fact that he or she was or is serving as an officer or trustee, except for such liabilities and expenses (a) the payment of which is judicially determined to be unlawful, (b) relating to claims under Section 16(b) of the Exchange Act or (c) relating to judicially determined criminal violations. II-2 Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. See Index to Exhibits. 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, as amended (the "Securities Act"); (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; (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 periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement. 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 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 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 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 may be permitted to trustees, officers and controlling persons of the registrant pursuant to the provisions of the registrant's charter or bylaws 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 Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than II-3 the payment by the registrant of expenses incurred or paid by a trustee, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such trustee, 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. II-4 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each of Security Capital Pacific Trust, a Maryland real estate investment trust, and each of the undersigned trustees and officers of Security Capital Pacific Trust, hereby constitutes and appoints C. Ronald Blankenship, R. Scot Sellers, Bryan J. Flanagan, Ash K. Atwood, Jeffrey A. Klopf and Ariel Amir its or his true and lawful attorneys-in- fact and agents, for it or him and in its or his name, place and stead, in any and all capacities, with full power to act alone, to sign any and all amendments to this registration statement (including post-effective amendments thereto, and other documents in connection therewith), and to file the same, with all exhibits thereto, and any and all documents in connection therewith, with the Securities and Exchange Commission, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as it or he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof. II-5 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 Santa Fe, State of New Mexico, on the 9th day of July, 1997. Security Capital Pacific Trust By: /s/ R. Scot Sellers ------------------------------------- R. Scot Sellers Chief Executive Officer and President Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities indicated on the dates indicated.
Signature Title Date - --------------------------- ---------------------------------- ------------- /s/ C. Ronald Blankenship Non-Executive Chairman and Trustee July 9, 1997 - --------------------------- C. Ronald Blankenship /s/ R. Scot Sellers Chief Executive Officer and July 9, 1997 - --------------------------- President (Principal Executive R. Scot Sellers Officer) /s/ Bryan J. Flanagan Senior Vice President (Principal July 9, 1997 - --------------------------- Financial Officer) Bryan J. Flanagan /s/ Ash K. Atwood Vice President and Co-Controller July 9, 1997 - --------------------------- (Principal Accounting Officer) Ash K. Atwood /s/ James A. Cardwell Trustee July 9, 1997 - --------------------------- James A. Cardwell /s/ John T. Kelley III Trustee July 9, 1997 - --------------------------- John T. Kelley III /s/ Calvin K. Kessler Trustee July 9, 1997 - --------------------------- Calvin K. Kessler Trustee - --------------------------- William G. Myers /s/ James H. Polk III Trustee July 9, 1997 - --------------------------- James H. Polk III /s/ John C. Schweitzer Trustee July 9, 1997 - --------------------------- John C. Schweitzer
II-6 EXHIBIT INDEX Exhibit Description - ------- ----------- 4.1 Property Trust of America Share Option Plan for Outside Trustees (incorporated by reference to Exhibit 10.1 to the registrant's Form 10-K for the year ended December 31, 1995). 4.2 Restated Declaration of Trust of the registrant (incorporated by reference to Exhibit 4 to the registrant's Form 10-Q for the quarter ended June 30, 1991). 4.3 First Certificate of Amendment of Restated Declaration of Trust of the registrant (incorporated by reference to Exhibit 4 to the registrant's Form 10-Q for the quarter ended June 30, 1992). 4.4 Second Certificate of Amendment of Restated Declaration of Trust of the Registrant (incorporated by reference to Exhibit 3.1 to the registrant's Form 8-K dated May 3, 1994). 4.5 Third Articles of Amendment of Restated Declaration of Trust of the registrant (incorporated by reference to Exhibit 4.4 to the registrant's Registration Statement No. 33-86444). 4.6 Fifth Articles of Amendment of Restated Declaration of Trust of the registrant (incorporated by reference to Exhibit 4.5 to the registrant's Form 10-K for the year ended December 31, 1996). 4.7 Articles Supplementary relating to the registrant's Series A Preferred Shares (incorporated by reference to Exhibit 3.1 to the registrant's Form 8-K dated November 22, 1993). 4.8 Articles Supplementary relating to the registrant's Series B Preferred Shares (incorporated by reference to Exhibit 99.3 to the registrant's Form 8-K dated May 18, 1995). 4.9 First Articles of Amendment to Articles Supplementary relating to the registrant's Series B Preferred Shares (incorporated by reference to Exhibit 3.1 to the registrant's Form 10-Q for the quarter ended September 30, 1995). 4.10 Bylaws of the registrant (incorporated by reference to Exhibit 4.1 to the registrant's Form 8-K dated November 22, 1993). 4.11 Rights Agreement, dated as of July 21, 1994, between the registrant and Chemical Bank, including form of Rights Certificate (incorporated by reference to Exhibit 4.2 to the registrant's Form 8-K dated July 19, 1994). 4.12 First Amendment, dated as of February 8, 1995, to Rights Agreement, between the registrant and Chemical Bank (incorporated by reference to Exhibit 4.13 to the registrant's Form 10-K for the year ended December 31, 1994). 5 Opinion of Mayer, Brown & Platt as to the legality of the securities registered. 15 Letter re unaudited interim financial information. 23.1 Consent of KPMG Peat Marwick LLP. 23.2 Consent of Mayer, Brown & Platt (included in its opinion filed as Exhibit 5 hereto). 24 Power of Attorney (included at page II-5 hereof).
EX-5 2 OPINION OF MAYER, BROWN & PLATT Exhibit 5 July 10, 1997 The Board of Trustees Security Capital Pacific Trust 7777 Market Center Avenue El Paso, Texas 79912 Gentlemen: We have acted as counsel to Security Capital Pacific Trust, a Maryland real estate investment trust (the "Company"), in connection with the registration of 30,000 shares of the Company's common shares of beneficial interest, par value $1.00 per share (the "Shares"), issuable pursuant to the Property Trust of America Share Option Plan for Outside Trustees (the "Plan"), on the Form S-8 Registration Statement filed by the Company with the Securities and Exchange Commission on the date hereof (the "Registration Statement"). As such counsel, we have examined originals or copies certified or otherwise identified to our satisfaction of the Plan, the Company's Restated Declaration of Trust, as amended and supplemented (the "Declaration of Trust"), and Bylaws, resolutions of the Company's Board of Trustees and such other records, certificates and documents and such questions of law as we considered necessary or appropriate for purposes of this opinion. In rendering such opinion, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as copies. Based upon and subject to the foregoing, we are of the opinion that the Shares, when sold upon the exercise of options in accordance with the terms of the Plan, will be duly authorized, legally issued, fully paid and, except as described below, nonassessable. Our opinion relating to the nonassessability of the Shares does not pertain to the potential liability of shareholders of the Company for debts of the Company. Section 5-350 of the Maryland Courts and Judicial Proceedings Code provides that "a shareholder . . . of a real estate investment trust . . . is not personally liable for the obligations of the real estate investment trust." The Declaration of Trust provides that no shareholder shall be personally liable in connection with the Company's property or the affairs of the Company. The Declaration of Trust further provides that the Company shall indemnify and hold harmless shareholders against all claims and liabilities and related reasonable expenses to which they become subject by virtue of their status as current or former shareholders. In addition, we have been advised that the Company, as a matter of practice, inserts a clause in its business, management and other contracts that provides that shareholders shall not be personally liable thereunder. Accordingly, no personal liability should attach to the Company's shareholders for contract claims under any contract containing such a clause where adequate notice is given. However, with respect to tort claims, contract claims where shareholder liability is not so The Board of Trustees July 10, 1997 Page 2 negated, claims for taxes and certain statutory liability, the shareholders may, in some jurisdictions, be personally liable for such claims and liabilities. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to all references to our firm in the Registration Statement. Very truly yours, MAYER, BROWN & PLATT By: /s/ Edward J. Schneidman ---------------------------- Edward J. Schneidman EX-15 3 LETTER RE UNAUDITED INTERIM FINANCIAL INFORMATION Exhibit 15 The Board of Trustees of Security Capital Pacific Trust With respect to this registration statement on Form S-8, we acknowledge our awareness of the incorporation by reference of our report dated May 2, 1997 related to our review of interim financial information of Security Capital Pacific Trust as of March 31, 1997 and for the three-month periods ended March 31, 1997 and 1996, which report appears in the March 31, 1997 Quarterly Report on Form 10-Q of Security Capital Pacific Trust. Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not considered a part of a registration statement prepared or certified by an accountant, or a report prepared or certified by an accountant within the meaning of sections 7 and 11 of the Act. KPMG Peat Marwick LLP /s/ KPMG Peat Marwick LLP Chicago, Illinois July 9, 1997 EX-23.1 4 CONSENT OF KPMG PEAT MARWICK LLP Exhibit 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Trustees of Security Capital Pacific Trust We consent to the incorporation by reference in this registration statement on Form S-8 of our report dated January 29, 1997, except as to Note 13, which is as of March 10, 1997, relating to the balance sheets of Security Capital Pacific Trust as of December 31, 1996 and 1995, the related statements of earnings, shareholders' equity and cash flows for each of the years in the three-year period ended December 31, 1996, and the related schedule as of December 31, 1996, which report appears in the December 31, 1996 Annual Report on Form 10-K of Security Capital Pacific Trust. KPMG Peat Marwick LLP /s/ KPMG Peat Marwick LLP Chicago, Illinois July 9, 1997 -----END PRIVACY-ENHANCED MESSAGE-----