-----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, G4tcrDquzOfeet+6EJBztMFRiZcyUgrdTQmIxjVx6OC2cmf6wTV4q/AYKm6BPayn MlIyxPflAQ4NtFmhdjdliw== 0000950149-96-000229.txt : 19960315 0000950149-96-000229.hdr.sgml : 19960315 ACCESSION NUMBER: 0000950149-96-000229 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19960314 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: FRANKLIN SELECT REAL ESTATE INCOME FUND CENTRAL INDEX KEY: 0000845613 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 943095938 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-64131 FILM NUMBER: 96534681 BUSINESS ADDRESS: STREET 1: 1800 GATEWAY DR - STE 200 CITY: SAN MATEO STATE: CA ZIP: 94404 BUSINESS PHONE: 4153122000 MAIL ADDRESS: STREET 1: P O BOX 7777 CITY: SAN MATEO STATE: CA ZIP: 94403-7777 FORMER COMPANY: FORMER CONFORMED NAME: FRANKLIN CALIFORNIA REAL ESTATE FUND DATE OF NAME CHANGE: 19890307 S-4/A 1 FORM S-4 AMENDMENT NO. 5 1 As filed with the Securities and Exchange Commission on March 14, 1996 Registration Statement No. 33-64131 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON D.C. 20549 AMENDMENT NO. 5 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 FRANKLIN SELECT REAL ESTATE INCOME FUND (Exact name of registrant as specified in its charter) California 6512 94-3095938 (State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer of incorporation or organization) Classification Code Number) Identification No.)
777 Mariners Island Boulevard DAVID P. GOSS, ESQ. San Mateo, California 94403-7777 Franklin Select Real Estate Income Fund (415) 312-3000 777 Mariners Island Boulevard (Address, including zip code, and telephone number, San Mateo, California 94403-7777 including area code, of agent for service) (415) 312-3000 (Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to: DAVID J. ROMANSKI, ESQ. Steinhart & Falconer 333 Market Street, Suite 3200 San Francisco, California 94105 Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective. If the only securities being registered on this Form are being offered in connection with the formation of a holding company, check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. /x/ CALCULATION OF REGISTRATION FEE ================================================================================
Proposed Maximum Proposed Maximum Amount of Title of Each Class of Amount to be Offering Price Aggregate Offering Registration Securities to be Registered Registered Per Share(1) Price(1) Fee(2) ------------------------------- ------------ ---------------- ------------------ ------------ Shares of Series A Common Stock 8,800,000 (2) $42,195,652 $14,550
================================================================================ (1) Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(f) of the Securities Act of 1933 on the basis of the market value of the securities to be exchanged. (2) This Registration Statement relates to the proposed merger of Franklin Real Estate Income Fund ("FREIF") and/or Franklin Advantage Real Estate Income Fund ("Advantage") into Franklin Select Real Estate Income Fund. At the merger, there will be a maximum of 3,999,514 shares of Series A Common Stock of FREIF outstanding, and a maximum of 3,013,713 shares of Series A Common Stock of Advantage outstanding. The average of the high and low prices of such securities reported on the American Stock Exchange on November 7, 1995 were $5.44 and $5.31, respectively. The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. ================================================================================ 2 FRANKLIN SELECT REAL ESTATE INCOME FUND Cross Reference Sheet Showing Location in Prospectus of Information Required by Form S-4
Registration Statement Item Location in Prospectus --------------------------- ---------------------- A. Information About the Transaction 1. Forepart of Registration Front Cover Page Statement and Outside Front Cover Page of Prospectus 2. Inside Front and Outside Back Inside Front and Outside Back Cover Cover Pages of Prospectus Pages 3. Risk Factors, Ratio of Earnings Summary; Risk Factors; to Fixed Charges and Other Selected Financial Information of Information the Company, FREIF and Advantage; Pro Forma Financial Statements 4. Terms of the Transaction Summary; Terms of the Merger; Voting Procedure; Rights of Dissenting Shareholders; Comparative Information; Description of Capital Stock; Income Tax Considerations; Appendix A, D and E 5. Pro Forma Financial Information Summary; Pro Forma Financial Statements; Selected Financial Information of the Company; The Company's Management Discussion and Analysis of Financial Condition and Results of Operations 6. Material Contacts with the Summary; Investment Considerations; Company Being Acquired Terms of the Merger 7. Additional Information Required * for Reoffering by Persons and Parties Deemed to be Underwriters 8. Interests of Named Experts and Legal Opinions; Experts Counsel 9. Disclosure of Commission Position Part II on Indemnification for Securities Act Liabilities B. Information About the Registrant 10. Information with Respect to S-3 * Registrants
- -------------------------- * Omitted as inapplicable 3 11. Incorporation of Certain * Information By Reference 12. Information with Respect to S-2 * or S-3 Registrants 13. Incorporation of Certain * Information By Reference 14. Information with Respect to The Company; Policies of the Registrants Other than S-2 or S-3 Company With Respect to Certain Registrants Activities; Description of Real Properties; Summary; Financial Information of the Company and the Funds; Pro Forma Financial Statements; Selected Financial Information of the Company; Market Price, Distributions and Holders of the Company's and the Funds' Securities; The Company's Management's Discussion and Analysis of the Financial Condition and Results of Operations C. Information About the Company Being Acquired 15. Information with Respect to S-3 * Companies 16. Information with Respect to S-2 * or S-3 Companies 17. Information with Respect to The Funds; Description of Real Companies Other than S-2 or S-3 Properties; Investment Policies Companies and Activities of the Funds; Market Price, Distributions and Holders of the Company's and the Funds' Securities; Summary; Selected Financial Information of FREIF; FREIF's Management's Discussion and Analysis of Financial Condition and Results of Operations; Selected Financial Information of Advantage; Advantage's Management's Discussion and Analysis of Financial Condition and Results of Operations; Financial Information of the Company and the Funds
------------------------- * Omitted as inapplicable 4 D. Voting and Management Information 18. Information if Proxies, Consents Notice of Special Meetings; Front or Authorizations are to be Cover Page; Voting Procedure; Rights Solicited of Dissenting Shareholders; Risk Factors; Terms of the Merger; Security Ownership of Certain Beneficial Owners and Management of the Company and the Funds; Compensation of the Company, the Advisor and Continental; Comparative Information; Management of the Company, the Advisor and Continental 19. Information if Proxies, Consents * or Authorizations are not to be Solicited or in an Exchange Offer
- -------------------------- * Omitted as inapplicable 5 PART II - -------------------------------------------------------------------------------- INFORMATION NOT REQUIRED IN PROSPECTUS - -------------------------------------------------------------------------------- Item 20. Indemnification of Directors and Officers Under its Articles of Incorporation, as amended, the Company has eliminated the personal liability of a director to the Company and its Shareholders to the fullest extent permitted under California law. In effect, a director will not be held liable for damages to the Company or its Shareholders for mere negligence or lack of due care in carrying out his fiduciary duties as a director. A director would, however, still be liable if he acted in bad faith or in reckless disregard of his duties. This limitation of liability does not affect the availability to the Shareholders of injunctive relief or other equitable remedies for any violation of a director's duties to the Company or its Shareholders, although such equitable remedies may not be an effective remedy in all circumstances. The Company believes that such limitations of liability are essential to attract and retain qualified individuals to serve as directors of the Company. Under its Articles of Incorporation, as amended, and its Bylaws and pursuant to indemnification agreements, the Company will also indemnify, to the fullest extent permitted under California law, its directors, and is permitted to indemnify officers, employees and other agents (including the Advisor, its Affiliates, and their respective directors, officers and employees) against all liabilities incurred on account of their serving in those capacities. This indemnification arrangement protects the Company's agents against liability for breach of duty to the Company and its Shareholders to the same extent that the directors' liability is eliminated with three exceptions: (i) any claim where an agent is found to be liable to the Company in the performance of his duty to the Company and the Shareholders, unless the court determines that the agent is fairly and reasonably entitled to indemnity for such expenses and then only to the extent that the court determines; (ii) amounts paid in settling an action without court approval; or (iii) expenses incurred in defending an action which is settled without court approval. The indemnification and exculpatory arrangements described above will not deny or limit third party or derivative suits. To the extent an agent is entitled to indemnification, though, the financial burden of a suit by a third party would be borne by the Company. The Company could be precluded from benefiting from a recovery in a suit brought against a director by a Shareholder on the Company's behalf and, in the case of a suit brought by a Shareholder against an agent, the Company might be liable for the agent's expenses, even if the agent is found liable. The Company maintains directors' and officers' insurance, which might pay for some of these expenses. The Company has also entered into indemnification agreements with its directors and certain of its officers. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, II-1 6 the Registrant has been informed 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. Item 21. Exhibits and Financial Statement Schedules. (a) Exhibits: See Exhibit Index contained herein. (b) Financial Statement Schedules All financial statement schedules required are located in the footnotes to the Financial Information of the Company, FREIF or Advantage, respectively. All other schedules for which provision is made in the applicable accounting regulations of the Securities and Exchange Commission are not required under the related instructions or are inapplicable, and therefore have been omitted. (c) Information required by Item 4(b) (1) Fairness Opinion (Appendix B to the Joint Proxy Statement/Prospectus) Item 22. Undertakings. (1) The undersigned registrant hereby undertakes as follows: that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form. (2) The registrant undertakes that every prospectus: (i) that is filed pursuant to paragraph (1) immediately preceding, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Act and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes 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) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. (4) The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. (5) The undersigned registrant hereby undertakes: (i) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement; (a) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (b) 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. (c) 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; (ii) 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. (iii) 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. (6) 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue. II-2 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Amendment No. 5 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Mateo, State of California, on the 14th day of March, 1996. FRANKLIN SELECT REAL ESTATE INCOME FUND By: David P. Goss -------------------------------------- David P. Goss, Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 5 to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Capacity Date --------- -------- ---- David P. Goss Chief Executive Officer, President March 14, 1996 ----------------------- and Director (principal executive David P. Goss officer) Mark A. TenBoer Vice President - Finance and Chief March 14, 1996 ----------------------- Financial Officer (principal Mark A. TenBoer financial officer and principal accounting officer) *Lloyd D. Hanford, Jr. Director March 14, 1996 ----------------------- Lloyd D. Hanford, Jr. *Lawrence C. Werner Director March 14, 1996 ----------------------- Lawrence C. Werner *Egon H. Kraus Director March 14, 1996 ----------------------- Egon H. Kraus *E. Samuel Wheeler Director March 14, 1996 ----------------------- E. Samuel Wheeler
* Signed pursuant to power of attorney filed on November 13, 1995. II-3 8 EXHIBIT INDEX 2.1 Form of Agreement and Plan of Merger (Appendix A to Joint Proxy Statement/Prospectus) 3.1 Articles of Incorporation, as amended. Filed with Registrant's Registration Statement No. 33-26562 and incorporated herein by reference. 3.2 Amended and Restated Bylaws. Filed with Registrant's Registration Statement No. 33-26562 and incorporated herein by reference. 5.1 Opinion Regarding Legality (including Consent of Counsel) 8.1* Opinion Regarding Tax Matters 10.1 Advisory Agreement. Filed with Registrant's Registration Statement No. 33-26562 and incorporated herein by reference. 10.2 First Amendment to Advisory Agreement. Filed with Registrant's Annual Report on 10-K for the year ended December 31, 1994 and incorporated herein by reference. 10.3 Property Management Agreement. Filed with Registrant's Annual Report on 10-K for the year ended December 31, 1994 and incorporated herein by reference. 10.4 Form of Indemnification Agreement. 10.5 Letter Agreement with Prudential Securities Incorporated dated October 12, 1995. 11.1 Statement regarding computation of earnings per share. See Note 3 to the Financial Statements of the Company. 13.1 Annual Report to Shareholders for the fiscal year ended December 31, 1994 (to be deemed filed only to the extent required by the instructions to exhibits for report on Form 10-K). Filed with Registrant's Annual Report on 10-K for the year ended December 31, 1994 and incorporated herein by reference. 24.1 Consent of Steinhart & Falconer (contained in Exhibit 5.1) 24.2 Consent of Coopers & Lybrand, LLP (Independent Public Accountants). 24.3* Consent of Bear, Stearns & Co., Inc. 25.1 Power of Attorney (contained on signature page) 99.1 Proxy Card for Registrant 99.2 Proxy Card for FREIF 99.3 Proxy Card for Advantage * Final document filed herewith. EX-8.1 2 OPINION REGARDING TAX MATTERS 1 Exhibit 8.1 March 13, 1996 Franklin Select Real Estate Income Fund P.O. Box 7777 San Mateo, CA 94403-7777 Re: Merger of Franklin Real Estate Income Fund and/or Franklin Advantage Real Estate Income Fund into Franklin Select Real Estate Income Fund Gentlemen: We are acting as counsel to Franklin Select Real Estate Income Fund (the "Company") in connection with the proposed merger of Franklin Real Estate Income Fund ("FREIF") and/or Franklin Advantage Real Estate Income Fund ("Advantage" and, together with FREIF, the "Funds") with and into the Company (the "Merger") pursuant to that certain Agreement and Plan of Merger dated November 7, 1995 (the "Merger Agreement"). (The Company, FREIF, and Advantage are sometimes hereafter referred to collectively as the "REITs".) In this connection, we have participated in the preparation of the Joint Proxy Statement/Prospectus distributed to shareholders of the REITs in connection with the proposed Merger. We have reviewed the following documents for purposes of this opinion: 2 Franklin Select Real Estate Income Fund March 13, 1996 Page 2 (1) The Joint Proxy Statement/Prospectus; (2) The Merger Agreement; (3) The 1994 Annual Reports of the REITs filed with the SEC; (4) The Forms 10-K for the fiscal years ended December 31, 1994 filed by the REITs with the SEC; (5) The Forms 10-Q for the quarter ended March 31, 1995 filed by the REITs with the SEC; (6) The Forms 10-Q for the quarter ended June 30, 1995 filed by the REITs with the SEC, (7) The Forms 10-Q for the quarter ended September 30, 1995 filed by the REITs with the SEC, and (8) Certificates of the Chief Financial Officers of each of the REITs each dated March 13, 1996. 3 Franklin Select Real Estate Income Fund March 13, 1996 Page 3 The documents listed in items (1) through (7) are hereinafter referred to as the "Reports," and the Certificates listed in item (8) are referred to as the "Certificates." We have relied on the correctness and accuracy of all facts set forth in all the Certificates and Reports. Based on this review, and in reliance on the Reports and Certificates, we are of the opinion that: (i) The merger will have the following federal income tax consequences: (a) No gain or loss will be recognized by the Funds or the Company as a result of the Merger; (b) No gain or loss will be recognized by FREIF or Advantage Shareholders with respect to their receipt of Company Common Stock pursuant to the Merger; (c) The aggregate tax basis of Company Common Stock received by each FREIF or Advantage Shareholder in the 4 Franklin Select Real Estate Income Fund March 13, 1996 Page 4 Merger will be the same as the aggregate tax basis of the FREIF or Advantage Common Stock he or she surrenders; (d) The holding period of Company Common Stock received by FREIF or Advantage Shareholders will include the period during which they held their FREIF or Advantage Common Stock; (e) Each FREIF or Advantage Shareholder who exercises Dissenter's Rights in the Merger will be treated as receiving a payment from the Company in redemption of his or her FREIF or Advantage Common Stock and will recognize capital gain or loss measured by the difference between the cash received and the tax basis of his or her FREIF or Advantage Common Stock. (ii) For the calendar year 1994 and through September 30 of the calendar year 1995, each of the REITs met the requirements of the Internal Revenue Code for qualification as a real estate investment trust, each of the REITs currently meets such requirements, and the Company's contemplated method of operation as described in the Joint Proxy Statement/Prospectus 5 Franklin Select Real Estate Income Fund March 13, 1996 Page 5 will enable the Company to comply with such requirements in the future. (iii) The discussion in the Joint Proxy Statement/ Prospectus under the caption entitled "Income Tax Considerations" fairly summarizes the federal income tax considerations that are material with respect to the Merger and the subsequent ownership of the Company's common stock by a shareholder which is not a tax exempt entity, a foreign corporation, trust or partnership, or a person who is not a United States citizen or resident. We hereby consent to the filing of this opinion as Exhibit 8.1 to the Joint Proxy Statement/Prospectus and to the use of our name under the captions "Legal Opinions" and "Taxation" in the Joint Proxy Statement/Prospectus. Yours very truly, STEINHART & FALCONER By: /s/ DAVID F. BOYLE -------------------------- David F. Boyle EX-24.3 3 CONSENT OF BEAR, STEARNS & CO., INC. 1 EXHIBIT 24.3 CONSENT OF BEAR, STEARNS & CO., INC. We hereby consent to the inclusion in the Joint Proxy Statement/Prospectus constituting a part of this Registration Statement on Form S-4 of our opinion to be dated March 13, 1996, to the Independent Committees of the Boards of Directors of Franklin Select Real Estate Income Fund, Franklin Real Estate Income Fund and Franklin Advantage Real Estate Income Fund attached as Appendix B to such Joint Proxy Statement/Prospectus and the references to such opinion and to our firm in such Joint Proxy Statement/Prospectus. In giving consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933 and the rules and regulations of the Securities and Exchange Commission issued thereunder. BEAR, STEARNS & CO., INC. By: /S/ JAMES D. MARVER ---------------------- James D. Marver Dated: March 13, 1996 -----END PRIVACY-ENHANCED MESSAGE-----