As filed with the Securities and Exchange Commission on October 17, 1997
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
METROPOLIS REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
Maryland 13-3910684
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
605 Third Avenue
New York, New York 10016
(212) 655-0220
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(Address and telephone number of principal executive offices)
Metropolis Realty Trust, Inc. 1996 Directors' Stock Plan
(Full title of the plan)
Mr. John Klopp
c/o Capital Trust
605 Third Avenue
New York, New York 10016
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(Name and address of agent for service)
(212) 655-0220
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(Telephone number, including area code, of agent for service)
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<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================
Proposed
Proposed maximum
maximum aggregate Amount of
Amount to be offering offering registration
Title of securities to be registered registered price(1) price(1) fee
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<S> <C> <C> <C> <C>
Common Stock, par value $10.00 per share 100,000 $25.00 $2,500,000 $757.58
===============================================================================================================
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(1) The exercise price of the initial grants of stock options under the plan is
$25.00. The exercise price of subsequent stock option grants under the plan
will be the fair market value per share of the shares covered by the stock
option at the time that the stock option is granted, as determined by the
administrator, which prices are not presently determinable.
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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 individuals who have been awarded options or shares of Common
Stock under the Metropolis Realty Trust, Inc. 1996 Directors' Stock Plan (the
"Plan"), 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. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item will be
sent or given, without charge, to individuals who have been awarded options or
shares of Common Stock under the Plan 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 Documents by Reference
The following documents filed with the Commission by Metropolis Realty
Trust, Inc. (the "Company" or the "Registrant") are incorporated herein by
reference:
(1) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 10, as amended, filed with the
Commission on December 9, 1996 and amended on December 20, 1996,
January 23, 1997, February 6, 1997 and March 17, 1997 pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and any amendment or report filed with the Commission
for purposes of updating such description.
(2) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
pursuant to this Registration Statement have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in
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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 that 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.
Item 5. Interest of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The Maryland General Corporation Law ("MGCL") permits a Maryland
corporation to include in its charter a provision limiting the liability of its
directors and officers to the corporation and its stockholders for money damages
except for liability resulting from (a) actual receipt of an improper benefit or
profit in money, property or services or (b) active and deliberate dishonesty
established by a final judgment as being material to the cause of action. The
charter of the Company contains such a provision which eliminates such liability
to the maximum extent permitted by the MGCL.
The charter of the Company authorizes it, to the maximum extent permitted
by Maryland law, to obligate itself to indemnify and to pay or reimburse
reasonable expenses in advance of final disposition of a proceeding to (a) any
present or former director or officer or (b) any individual who, while a
director of the Company and at the request of the Company, serves or has served
another corporation, real estate investment trust, partnership, joint venture,
trust, employee benefit plan or any other enterprise as a director, officer,
partner or trustee of such corporation, real estate investment trust,
partnership, joint venture, trust, employee benefit plan or other enterprise
from and against any claim or liability to which such person may become subject
or which such person may incur by reason of his or her status as a present or
former director or officer of the Company. The Bylaws of the Company obligate
it, to the maximum extent permitted by Maryland law, to indemnify and to pay or
reimburse reasonable expenses in advance of final disposition of a proceeding to
(a) any present or former director or officer who is made a party to the
proceeding by reason of his service in that capacity or (b) any individual who,
while a director of the Company and at the request of the Company, serves or has
served another corporation, real estate investment trust, partnership, joint
venture, trust, employee benefit plan or any other enterprise as a director,
officer, partner or trustee of such corporation, real estate investment trust,
partnership, joint venture, trust, employee benefit plan or other enterprise and
who is made a party to the proceeding by reason of his service in that capacity.
The charter and Bylaws also permit the Company to indemnify and advance expenses
to any person who served a predecessor of the Company in any of the capacities
described above and to any employee or agent of the Company or a predecessor of
the Company.
The MGCL requires a corporation (unless its charter provides otherwise,
which the Company's charter does not) to indemnify a director or officer who has
been successful, on the merits or otherwise, in the defense of any proceeding to
which he is made a party by reason of his service in that capacity. The MGCL
permits a corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in
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connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities unless it is established that (a) the
act or omission of the director of officer was material to the matter giving
rise to the proceeding and (i) was committed in bad faith or (ii) was the result
of active and deliberate dishonesty, (b) the director or officer actually
received an improper personal benefit in money, property or services or (c) in
the case of any criminal proceeding, the director or officer had reasonable
cause to believe that the act or omission was unlawful. However, under the MGCL,
a Maryland corporation may not indemnify for an adverse judgment in a suit by or
in the right of the corporation or for a judgment of liability on the basis that
personal benefit was improperly received, unless in either case a court orders
indemnification and then only for expenses. In addition, the MGCL permits a
corporation to advance reasonable expenses to a director or officer upon the
corporation's receipt of (a) a written affirmation by the director or officer of
his good faith belief that he has met the standard of conduct necessary for
indemnification by the corporation and (b) a written undertaking by or on his
behalf to repay the amount paid or reimbursed by the corporation if it shall
ultimately be determined that the standard of conduct was not met.
The Company has entered into indemnification agreements with its initial
officers and directors. The indemnification agreements require, among other
things, that the Company indemnify its officers and directors to the fullest
extent permitted by law and advance to the executive officers and directors all
related expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. Under these agreements, the Company must also
indemnify and advance all expenses incurred by officers and directors seeking to
enforce their rights under the indemnification agreements and may cover officers
and directors under the Company's directors' and officers' liability insurance.
Although the indemnification agreements offer substantially the same scope of
coverage afforded by law, they provide greater assurance to directors and
officers that indemnification will be available, because, as a contract, they
cannot be modified unilaterally in the future by the board of directors of the
Company or the stockholders to eliminate the rights they provide.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
5.1 Opinion of Ballard Spahr Andrews & Ingersoll regarding the
legality of securities being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Ballard Spahr Andrews & Ingersoll (contained in its
opinion filed as Exhibit 5.1 hereto).
24 Power of Attorney (contained in the signature pages hereto).
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Item 9. Undertakings
The Company 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 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 the 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.
2. 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 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.
3. 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
Securities Act and is, therefore, unenforceable. In the event that a claim or
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person in the successful defense of any action, suit or proceedings) 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.
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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 September 30, 1997.
METROPOLIS REALTY TRUST, INC.
By: /s/ Lee S. Neibart
-----------------------------
Lee S. Neibart
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Lee S. Neibart his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities (until
revoked in writing), to sign any and all amendments (including post-effective
amendments) to this Registration Statement and to cause the same to be filed,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby granting to said attorneys-in-fact
and agents, and each of his substitutes, full power and authority to do and
perform each and every act and thing whatsoever requisite or desirable to be
done, as fully to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all acts and things that said
attorneys-in-fact and agents, or either of them, or their substitutes or
substitute may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 30, 1997.
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Signature Title Date
<S> <C> <C>
/s/ William L. Mack
- --------------------------------- Chairman of the Board September 30, 1997
William L. Mack and a Director
/s/ Lee S. Neibart
- --------------------------------- President and a Director September 30, 1997
Lee S. Neibart
/s/ Stuart Koenig
- --------------------------------- Vice President, Treasurer and September 30, 1997
Stuart Koenig Principal Financial Officer
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ W. Edward Scheetz
- --------------------------------- Vice President and Director September 30, 1997
W. Edward Scheetz
/s/ John R. Klopp
- --------------------------------- Vice President and Director September 30, 1997
John R. Klopp
/s/ Bruce H. Spector
- --------------------------------- Director September 30, 1997
Bruce H. Spector
/s/ Russel S. Bernard
- --------------------------------- Director September 30, 1997
Russel S. Bernard
/s/ Ralph F. Rosenberg
- --------------------------------- Director September 30, 1997
Ralph F. Rosenberg
/s/ David A. Strumwasser
- --------------------------------- Director September 30, 1997
David A. Strumwasser
/s/ David Roberts
- --------------------------------- Director September 30, 1997
David Roberts
</TABLE>
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EXHIBIT INDEX
Exhibit Number Description
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5.1 Opinion of Ballard Spahr Andrews & Ingersoll regarding
the legality of securities being registered.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Ballard Spahr Andrews & Ingersoll (contained
in its opinion filed as Exhibit 5.1 hereto).
24 Power of Attorney (contained in the signature pages
hereto).
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EXHIBIT 5.1
October 17, 1997
Metropolis Realty Trust, Inc.
885 Third Avenue
New York, New York 10022
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as Maryland counsel to Metropolis Realty Trust, Inc., a
Maryland corporation (the "Company"), in connection with certain matters of
Maryland law arising out of the registration of 100,000 shares (the "Shares") of
Common Stock, $10 par value per share, of the Company ("Common Stock") covered
by the above-referenced Registration Statement (the "Registration Statement"),
under the Securities Act of 1933, as amended (the "1933 Act"). The Shares are to
be issued by the Company pursuant to the Company's 1996 Directors' Stock Plan
(the "Plan"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Registration Statement.
In connection with our representation of the Company, and as a basis
for the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
1. The Registration Statement, filed with the Securities and Exchange
Commission (the "Commission"), pursuant to the Securities Act of 1933, as
amended (the "1933 Act"), and the related form of prospectus in the form in
which it will be sent or given to employees of the Company in accordance with
Rule 428(b)(1) under the 1933 Act;
2. The charter of the Company (the "Charter"), certified as of a
recent date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
3. The Bylaws of the Company, certified as of a recent date by its
Secretary;
4. Resolutions adopted by the Board of Directors of the Company
relating to (i) the approval of the Plan and (ii) the issuance and registration
of the Shares, certified as of a recent date by the Secretary of the Company;
5. A specimen of the certificate representing a share of Common Stock,
certified as of a recent date by the Secretary of the Company;
6. A certificate of the SDAT as to the good standing of the Company,
dated as of a recent date;
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Metropolis Realty Trust, Inc.
October 17, 1997
Page 2
7. A certificate executed by John Jacobsson, Secretary of the Company,
dated as of a recent date;
8. The Plan; and
9. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed, and so far
as is known to us there are no facts inconsistent with, the following:
1. Each individual executing any of the Documents, whether on behalf
of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and such party's obligations set forth therein
are legal, valid and binding and are enforceable in accordance with all stated
terms.
4. All Documents submitted to us as originals are authentic. All
Documents submitted to us as certified or photostatic copies conform to the
original documents. All signatures on all such Documents are genuine. All public
records reviewed or relied upon by us or on our behalf are true and complete.
All statements and information contained in the Documents are true and complete.
There are no oral or written modifications or amendments to the Documents, or
waiver of any of the provisions of the Documents, by action or omission of the
parties or otherwise.
5. The Shares will not be issued in violation of any restriction or
limitation contained in Article VII of the Charter.
The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions, limitations
and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under
and by virtue of the laws of the State of Maryland and is in good standing with
the SDAT.
2. The Shares have been duly authorized for issuance pursuant to the
Plan and, when and if issued and delivered against payment therefor in the
manner described in the Plan, will be (assuming that the sum of (i) all shares
of Common Stock issued as of the date hereof, (ii) any shares of Common
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Metropolis Realty Trust, Inc.
October 17, 1997
Page 3
Stock issued between the date hereof and any date on which the Shares are
actually issued (not including the Shares) and (iii) the Shares will not exceed
the total number of shares of Common Stock that the Company is then authorized
to issue and assuming that the Company is in good standing with the SDAT at any
time on which the Shares are actually issued) validly issued, fully paid and
nonassessable.
The foregoing opinion is limited to the substantive laws of the State
of Maryland and we do not express any opinion herein concerning any other law.
We express no opinion as to compliance with the securities (or "blue sky") laws
or the real estate syndication laws of the State of Maryland.
We assume no obligation to supplement this opinion if any applicable
law changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the
Securities and Exchange Commission as an exhibit to the Registration Statement
and, accordingly, may not be relied upon by, quoted in any manner to, or
delivered to any other person (other than Continental Stock Transfer & Trust
Company, transfer agent of the Company) or entity without, in each instance, our
prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of the name of our firm therein. In giving
this consent, we do not admit that we are within the category of persons whose
consent is required by Section 7 of the 1933 Act.
Very truly yours,
BALLARD SPAHR ANDREWS & INGERSOLL
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Metropolis Realty Trust, Inc. on Form S-8 of our report dated March 5, 1997,
appearing in the Annual Report on Form 10-K of Metropolis Realty Trust, Inc. for
the year ended December 31, 1996.
DELOITTE & TOUCHE LLP
New York, New York
September 25, 1997
451759.1
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