<PAGE>
As filed with the Securities and Exchange Commission on July 29, 1998
Registration No. 333-56617
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
-----------------------
GREAT LAKES REIT
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 36-4238056
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
823 COMMERCE DRIVE, SUITE 300, OAK BROOK, ILLINOIS 60523
(Address, Including Zip Code, of Principal Executive Offices)
GREAT LAKES REIT AMENDED AND RESTATED
OPTION PLAN FOR INDEPENDENT TRUSTEES
(Full Title of the Plan)
Richard L. Rasley
Executive Vice President, Co-General Counsel
and Secretary
Great Lakes REIT
823 Commerce Drive, Suite 300
Oak Brook, Illinois 60523
(Name and Address of Agent for Service)
(630) 368-2900
(Telephone Number, Including Area Code, of Agent For Service)
--------------
Pursuant to Rule 414(d) under the Securities Act of 1933, the Registrant, as the
successor issuer to Great Lakes REIT, Inc., hereby adopts Great Lakes REIT,
Inc.'s Registration Statement on Form S-8 (Commission File No. 333-56617) as its
own Registration Statement for all purposes of the Securities Act of 1933 and
the Securities Exchange Act of 1934.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 and the Note to Part I
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents that have been filed by Great Lakes REIT (the
"Company," which term shall include its predecessor) with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998;
(3) The Company's Current Report on Form 8-K/A dated February 6,
1998, filed with the Commission on February 20, 1998; the
Company's Current Report on Form 8-K dated April 17, 1998, filed
with the Commission on April 20, 1998; the Company's Current
Report on Form 8-K dated April 21, 1998, filed with the
Commission on April 24, 1998; the Company's Current Report on
Form 8-K dated May 22, 1998, filed with the Commission on June 4,
1998; the Company's Current Report on Form 8-K/A dated June 18,
1998, filed with the Commission on June 19, 1998; and the
Company's Current Report on Form 8-K/A dated July 24, 1998, filed
with the Commission on July 24, 1998; and
(4) The description of the Company's common shares of beneficial
interest, par value $.01 per share (the "Common Shares"), set
forth in the Company's Registration Statement on Form 8-A filed
with the Commission on July 16, 1998, including any amendment or
report filed for the purpose of updating that description.
All documents that shall be filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") subsequent to the filing
<PAGE>
of this registration statement and prior to the filing of a post-effective
amendment indicating that all securities offered have been sold or
deregistering all securities then remaining unsold thereunder shall be deemed
to be incorporated herein by reference and shall be deemed to be a part
hereof from the date of filing thereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. (The Common Shares are registered under Section 12 of
the Exchange Act.)
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
Maryland law permits a Maryland real estate investment trust to
include in its declaration of trust a provision limiting the liability of its
trustees and officers to the trust and its shareholders 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
Company's Amended and Restated Declaration of Trust (the "Declaration of Trust")
contains such a provision that eliminates such liability to the maximum extent
permitted by Maryland law.
The Declaration of Trust authorizes the Company, 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 trustee or officer or (b) any individual who, while a
trustee of the Company and at the request of the Company, serves or has served
another real estate investment trust, corporation, partnership, joint venture,
trust, employee benefit plan or any other enterprise as a trustee, director,
officer or partner of such real estate investment trust, corporation,
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 that such person may incur by reason of his status as a present or former
trustee or officer of the Company. The Company's bylaws (the "Bylaws") 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 trustee 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 trustee of the Company and at the request of the Company, serves or has
served another real estate investment trust, corporation partnership, joint
venture, trust, employee benefit plan or any other enterprise as a trustee,
director, officer or partner of such real estate investment trust, corporation,
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,
against any claim or liability to which he may become subject by reason of such
status. The Declaration of Trust 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 Bylaws require the Company to
indemnify a trustee or officer who has been successful, on the merits or
<PAGE>
otherwise, in the defense of any proceeding to which he is made a party by
reason of his service in that capacity.
Maryland law permits a Maryland real estate investment trust to
indemnify and advance expenses to its trustees, officers, employees and
agents to the same extent as is permitted by the Maryland General Corporation
Law, as amended ("MGCL") for directors and officers of Maryland corporations.
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 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 or 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, 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 him 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 in effect insurance policies in the amount of
$5,000,000 covering all of the Company's trustees and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Declaration of Trust of the Company
(incorporated by reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-4, Commission File No. 333-56167
(the "S-4")).
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3.3
to the S-4).
4.3 Registration Rights Agreement, dated as of August 20, 1996, by
and among the Company, Fortis Benefits Insurance Company, Morgan
Stanley Institutional Fund, Inc. - U.S. Real Estate Portfolio,
Morgan Stanley SICAV Subsidiary SA, Wellsford Karpf Zarrilli
Ventures, L.L.C., Logan, Inc. and Pension Trust Account
No. 104972 Held by Bankers Trust Company as Trustee (incorporated
by reference to Exhibit 2 to the Company's Current Report on
Form 8-K dated August 28, 1996).
<PAGE>
4.4 Great Lakes REIT Amended and Restated Option Plan for Independent
Trustees.
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to the
validity of the securities registered hereunder.
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (set forth in
their opinion filed as Exhibit 5 to this Registration Statement).
23.2 Consent of Ernst & Young LLP.
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;
(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. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in 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
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) 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.
<PAGE>
(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 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.
(c) 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.
<PAGE>
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
Post-Effective Amendment No. 1 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Chicago,
State of Illinois, on this 28th day of July, 1998.
GREAT LAKES REIT
By: /s/ Richard L. Rasley
------------------------------------------------
Richard L. Rasley
Executive Vice President, Co-General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to Registration Statement has been signed by
the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Richard A. May Chairman of the Board July 28, 1998
- -------------------------- of Trustees and Chief Executive
Richard A. May Officer (Principal Executive
Officer); Trustee
/s/ Patrick R. Hunt President, Chief Operating July 28, 1998
- -------------------------- Officer and Trustee
Patrick R. Hunt
/s/ James Hicks Senior Vice President - Finance, July 28, 1998
- -------------------------- Chief Financial Officer and
James Hicks Treasurer (Principal Financial
and Accounting Officer)
* Trustee
- --------------------------
James J. Brinkerhoff
* Trustee
- --------------------------
Daniel E. Josephs
* Trustee
- --------------------------
Edward Lowenthal
<PAGE>
* Trustee
- --------------------------
Daniel P. Kearney
* Trustee
- --------------------------
Donald E. Phillips
</TABLE>
* This registration statement has been signed on behalf of the above-named
trustees of the Company by Richard L. Rasley, Executive Vice President,
Co-General Counsel and Secretary of the Company, as attorney-in-fact
pursuant to a power of attorney previously filed with the Securities and
Exchange Commission.
DATED: July 28, 1998 By: /s/ Richard L. Rasley
--------------------------------------
Richard L. Rasley, Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
- -------- -------------------
<S> <C>
4.1 Amended and Restated Declaration of Trust of the
Company (incorporated by reference to Exhibit 3.2 to
the Company's Registration Statement on Form S-4,
Commission File No. 333-56167 (the "S-4")).
4.2 Bylaws of the Company (incorporated by reference to
Exhibit 3.3 to the S-4).
4.3 Registration Rights Agreement, dated as of August 20,
1996, by and among the Company, Fortis Benefits
Insurance Company, Morgan Stanley Institutional Fund,
Inc. - U.S. Real Estate Portfolio, Morgan Stanley
SICAV Subsidiary SA, Wellsford Karpf Zarrilli
Ventures, L.L.C., Logan, Inc. and Pension Trust
Account No. 104972 Held by Bankers Trust Company as
Trustee (incorporated by reference to Exhibit 2 to the
Company's Current Report on Form 8-K dated August 28,
1996).
4.4 Great Lakes REIT Amended and Restated Option Plan for
Independent Trustees.
5 Opinions of Ballard Spahr Andrews & Ingersoll, LLP as
to the validity of the securities registered
hereunder.
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (set
forth in their opinion filed as Exhibit 5 to this
Registration Statement).
23.2 Consent of Ernst & Young LLP.
</TABLE>
<PAGE>
EXHIBIT 4.4
GREAT LAKES REIT
AMENDED AND RESTATED OPTION PLAN
FOR INDEPENDENT TRUSTEES
As of this date, July 27, 1998, Great Lakes REIT, a Maryland real estate
investment trust (the "Company"), as the successor issuer to Great Lakes REIT,
Inc., hereby amends and restates Great Lakes REIT, Inc.'s Option Plan for
Independent Directors (the "Plan"), originally established on July 2, 1992 and
amended from time to time thereafter, effective with respect to members of the
Board of Trustees who are not employees of the Trust ("Independent Trustees").
1. STATEMENT OF PURPOSE The purpose of the Plan is to benefit Great
Lakes REIT (the "Company") through the maintenance and development of the
Company's management and capital base by offering the Trustees of the Company
who are not affiliated with the Company ("Independent Trustees") an opportunity
to become holders of common shares of beneficial interest, $.01 par value per
share ("Common Shares"), in the Company over a period of years through the grant
of options (hereafter "Options"), thereby giving the Independent Trustees a
stake in the growth and prosperity of the Company and encouraging the
continuance of the Independent Trustee's services to the Company.
2. ADMINISTRATION Except as otherwise noted herein, the Plan shall be
administered by the Company's Board of Trustees (the "Board"), whose
interpretation of the terms and provisions of the Plan shall be final and
conclusive. No such member of the Board shall be liable for any such action or
determination made in good faith with respect to the Plan or any Option granted
thereunder. Members of the Board who are either eligible for Options or have
been granted Options may vote on any matters affecting the administration of the
Plan or the grant of any Options pursuant to the Plan including the granting of
an Option to himself. Any such member also may be counted in determining the
existence of a quorum at any meeting of the Board during which action is taken
with respect to the granting of Options to him.
3. ELIGIBILITY Options shall be granted hereunder only to Independent
Trustees, however, this limitation shall not operate to limit the right of the
Company to grant options to other individuals pursuant to other plans.
4. GRANTING OF OPTIONS The Board may grant options under which Common
Shares may be purchased from the Company, subject to adjustment as provided in
Paragraph 13. Options granted under the Plan are intended not to be treated as
incentive stock options as defined in Section 422A of the Internal Revenue Code
of 1986, as amended (the "Code"). Shares subject to Options will be authorized
but unissued Common Shares or treasury shares of such class reacquired by the
Company. The number of Options granted Independent Trustees shall be determined
according to the terms of resolutions adopted by the Board.
5. FAILURE TO EXERCISE OPTION In the event that an Option expires or is
terminated or canceled unexercised as to any shares, such released shares may
again be optioned (including a grant in substitution for a canceled Option).
Shares subject to options may be made available from unissued or reacquired
Common Shares.
<PAGE>
6. SERVICE CONTINUATION Nothing contained in the Plan or in any Option
granted pursuant thereto shall confer upon the Independent Trustees any right to
be continued in the service of the Company, or interfere in any way with the
right of the Company's shareholders to remove the Independent Trustees subject
to the terms of the Company's Amended and Restated Declaration of Trust or
applicable law.
7. OPTION PRICE The Option price of any Options granted to Independent
Trustees hereunder subject to the provisions of Paragraph 13, shall be the Fair
Market Value of the shares of beneficial interest at the end of each calendar
year. For the purpose of this Plan "Fair Market Value" shall mean: (i) the Net
Asset Value of a Share as last determined by the Board, or (ii) if the shares of
the Company have been listed on a national or regional market, the average of
the highest sales price per share of the Common Shares on such market or
exchange on each of the five trading days immediately preceding the relevant
date.
8. DURATION OF OPTIONS, INCREMENTS, AND EXTENSIONS All Options granted
under the Plan shall be evidenced by written Option certificates signed by an
officer of the Company. Any term or condition of any Option granted hereunder
that the Board is empowered to establish may be determined through an
appropriate provision in the form of written Option certificate evidencing the
grant. Such certificates shall comply with and be subject to the following
terms and conditions, which are expressly a part of this Plan. Subject to the
provisions of Paragraph 9 hereof, each Option granted Independent Trustees shall
be for terms of ten (10) years. Subject to the foregoing, all or any part of
the shares to which the right to purchase has accrued may be purchased at the
time of such accrual or at any time or times thereafter during the option
period. Until all conditions regarding the exercise of any Option are
satisfied, no right to vote or receive dividends or other rights granted to
shareholders shall exist with respect to optioned shares. No adjustment will be
made for a dividend or other rights for which the record date is prior to the
date the Option is effectively exercised, except as provided in the Plan.
9. CONSEQUENCE OF CHANGE IN CONTROL For purposes of this Plan the term
"Change in Control" shall mean the occurrence, at any time during the specified
term of an Option granted under the Plan, of any of the following events:
(a) The Company is merged or consolidated or reorganized into or with
another trust, corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than a majority of the combined
Voting Power (as defined below) of the then-outstanding securities of such
trust, corporation or person immediately after such transaction are held in the
aggregate by the holders of Common Shares immediately prior to such transaction;
(b) The Company sells or otherwise transfers all or substantially all of
its assets to any other trust, corporation or other legal person, and less than
a majority of the combined voting power of the then-outstanding securities of
such trust, corporation or person immediately after such sale or transfer is
held in the aggregate by the holders of Common Shares immediately prior to such
sale or transfer;
(c) There is a report filed on Schedule 13D or Schedule 14D-1 (or any
successor schedule, form or report), each as promulgated pursuant to the
Exchange Act, disclosing that any person (as the term "person" is used in
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act)
2
<PAGE>
has become the beneficial owner (as the term "beneficial owner" is defined
under Rule 13d-3 or any successor rule or regulation promulgated under the
Exchange Act) of securities representing 20% or more of the Voting Power;
(d) The Company files a report or proxy statement with the Securities and
Exchange Commission pursuant to the Exchange Act disclosing in response to Form
8-K or Schedule 14A (or any successor schedule, form or report or item therein)
that a change in control of the Company has or may have occurred or will or may
occur in the future pursuant to any then-existing contract or transaction; or
(e) If during any period of two consecutive years, individuals who at the
beginning of any such period constitute the Trustees of the Company cease for
any reason to constitute at least a majority thereof, unless the election, or
the nomination for election by the Company's shareholders, of each trustee of
the Company first elected during such period was approved by a vote of at least
two-thirds of the Trustees of the Company then still in office who were trustees
of the Company at the beginning of any such period.
Notwithstanding the foregoing provisions of Section 11(c) and (d) above, a
"Change in Control" shall not be deemed to have occurred for purposes of this
Plan (i) solely because (A) the Company; (B) a subsidiary of the Company; or (C)
any Company-sponsored employee stock ownership plan or other employee benefit
plan of the Company either files or becomes obligated to file a report or proxy
statement under or in response to Schedule 13D, Schedule 14D-l, Form 8-K or
Schedule 14A (or any successor schedule, form or report or item therein) under
the Exchange Act, disclosing beneficial ownership by it of shares, whether in
excess of 20% of the Voting Power or otherwise, or because the Company reports
that a change of control of the Company has or may have occurred or will or may
occur in the future by reason of such beneficial ownership or (ii) solely
because of a change in control of any subsidiary of the Company. For the
purpose of this Plan, "Voting Power" means, at any time, the total votes
relating to the then-outstanding securities entitled to vote generally in the
election of trustees of the Company.
Notwithstanding any other provisions in the Plan, during the period of
thirty (30) days after any Change in Control, an Independent Trustee (or other
person entitled to exercise an Option granted under the Plan) (in either case,
the "Optionholder") shall have the right to require the Company to purchase from
him any Option granted under the Plan at a purchase price equal to (1) the
excess of the Fair Market Value per share as of the date of the notice over the
Option price (2) multiplied by the number of Common Shares subject to such
Option specified by the Optionholder for purchase in a written notice to the
Company, attention of the Secretary. The amount payable to each Optionholder by
the Company shall be in cash or by certified check and shall be reduced by any
taxes required to be withheld.
10. EXERCISE OF OPTION (a) An Option may be exercised by giving written
notice to the Company, attention of the Secretary, specifying the number of
shares to be purchased, accompanied by the full purchase price for the shares to
be purchased either in cash, by check, or by Common Shares or by a combination
of these methods of payment. For this purpose, the share value of the Common
Shares shall be the fair market value on the date of exercise as defined above.
3
<PAGE>
(b) At the time of any exercise of any Option, the Company may, if it
shall determine it necessary or desirable for any reason, require the
Optionholder (or his heirs, legatees, or legal representative, as the case may
be) as a condition upon the exercise thereof, to deliver to the Company a
written representation of present intention to purchase the Common Shares for
investment and not for distribution. In the event such representation is
required to be delivered, an appropriate legend may be placed upon each
certificate delivered to the Optionholder upon his exercise of part or all of
the Option.
(c) Each Option shall also be subject to the requirement that, if at
any time the Company determines, in its discretion, that the listing,
registration or qualification of the Common Shares subject to the Option upon
any securities exchange or under any state or Federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the issue or purchase of shares thereunder,
the Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Company.
(d) At the time of the exercise of any Option the Company may
require, as a condition of the exercise of such Option, the Optionholder to pay
the Company an amount equal to the amount of the tax the Company may be required
to withhold to obtain a deduction for Federal income tax purposes as a result of
the exercise of such Option by the Optionholder.
11. EXERCISE AFTER RETIREMENT OR DISMISSAL OF AN INDEPENDENT TRUSTEE. The
retirement, "removal", or failure of an Independent Trustee to be reelected to
the Board of Trustees shall not effect the Options that were granted hereunder
previous to such event, unless an Independent Trustee has been removed from the
Board by a vote of the shareholders "for cause" under the Company's Amended and
Restated Declaration of Trust and Bylaws, in which event the term of any Options
previously granted the Independent Trustee shall toll, and all rights to
purchase shares pursuant thereto must be exercised within six months from such
date.
12. TRANSFERABILITY OF OPTIONS The Options shall not be transferable
except: (i) to an Independent Trustee's employer or an affiliate of such
employer, (ii) to one or more trusts established solely for the benefit of one
or more members of the Independent Trustee's family or to one or more
partnerships in which the only partners are members of the Independent Trustee's
family or to another entity established by the Independent Trustee for estate
planning purposes or (iii) by will or the laws of descent and distribution. An
Independent Trustee or his/her assignee shall provide the Company written notice
of any such transfer, and any such transfer shall not effect the conditions of
the exercise of the Option except as otherwise noted herein.
13. ADJUSTMENT The number of shares subject to the Plan and to Options
granted under the Plan shall be adjusted as follows:
(a) in the event that the Company's outstanding number of Common
Shares is changed by any share dividend, share split or combination of shares,
the number of shares subject to the Plan and to Options granted thereunder shall
be proportionately adjusted;
(b) in the event of any merger, consolidation or reorganization of
the Company with any other trust, corporation or corporations, there shall be
substituted, on an equitable basis as
4
<PAGE>
determined by the Board, for each share of beneficial interest then subject
to the Plan, whether or not at the time subject to outstanding Options, the
number and kind of shares of stock or other securities to which the holders
of beneficial interest in the Company will be entitled pursuant to the
transaction; and
(c) in the event of any other relevant change in the capitalization
of the Company, the Board shall provide for an equitable adjustment in the
number of shares of beneficial interest then subject to the Plan, whether or not
then subject to outstanding Options. In the event of any such adjustment the
purchase price per share shall be proportionately adjusted.
14. TRUSTEE INDEMNIFICATION In addition to such other rights of
indemnification as they have as trustees or as members of the Board, the members
of the Board making determinations hereunder shall be indemnified by the Company
against the reasonable expenses, including attorneys' fees actually and
necessarily incurred in connection with the defense of any action, suit or
proceeding, or in connection with any appeal therein, to which they or any of
them may be a party by reason of any action taken or failure to act under or in
connection with the Plan or any Option granted thereunder, and against all
amounts paid by them in settlement is approved by independent legal counsel
selected by the Company or paid by them in satisfaction of a judgement in any
such action, suit or proceeding except in relation to matters as to which it
shall be adjudged in such action, suit or proceeding that such director is
liable for negligence or misconduct in the performance of his duties; provided
that within sixty (60) days after institution of any such action, suit or
proceeding, a trustee shall, in writing, offer the Company the opportunity, at
its own expense, to defend the same.
15. AMENDMENT OF PLAN The Board may amend or discontinue the Plan at any
time. However, no such amendment or discontinuance shall (a) change or impair
any Option previously granted, without the consent of the Optionholder, (b)
change the minimum purchase price, or (c) change the limitations on the option
period or increase the time limitations on the grant of Options.
16. EFFECTIVE DATE The Plan became effective on July 2, 1992 and was
previously amended on December 5, 1996 and November 18, 1997.
IN WITNESS WHEREOF, this Option Plan has been adopted by the duly
authorized trustees of the Company on the date above written.
By: /s/ Richard L. Rasley
----------------------------
Richard L. Rasley, Secretary
5
<PAGE>
GREAT LAKES REIT
NON-QUALIFIED OPTION CERTIFICATE / INDEPENDENT TRUSTEE
This is to certify that on this _____ day of _________, 19__, Great Lakes
REIT, a Maryland real estate investment trust (the "Company"), pursuant to the
amended and restated Great Lakes REIT Option Plan for Independent Trustees (the
"Plan"), hereby grants to ___________________________________ (the "Trustee") an
option to purchase _______________________ common shares of beneficial interest,
par value $.01 per share ("Common Shares"), in the Company upon the terms and
conditions set forth herein. The Trustee and other individuals to whom an
option or any portion thereof has been granted or transferred hereunder may be
referred to herein as the "Optionholder" as necessary.
1. The purchase price, payable upon exercise of the option, shall be
$_____ per share, subject to adjustment as provided in paragraph 6 below.
2. The exercise of the option shall be subject to the following
conditions:
(a) The option shall become exercisable with respect to the total
number of shares subject to the option immediately after the date of the grant.
The Board administering the Plan may in its discretion accelerate the
exercisability of the option subject to such terms and conditions as it deems
necessary and appropriate. All or any part of the shares with respect to which
the right to purchase has accrued may be purchased at the time of such accrual
or at any time or times thereafter during the option period.
(b) The option may be exercised by giving written notice to the
Company, attention of the Secretary, specifying the number of shares to be
purchased, accompanied by the full purchase price for the shares to be purchased
either in cash or by check or by Common Shares or by a combination of such
methods of payment. At the time of any exercise of the option, the Company may,
if it shall determine it necessary or desirable for any reason, require the
Optionholder (or his heirs, legatees or legal representative, as the case may
be) as a condition upon the exercise thereof, to deliver to the Company a
written representation of present intention to purchase the shares for
investment and not for distribution. In the event such representation is
required to be delivered, an appropriate legend may be placed upon each
certificate delivered to the Optionholder upon his exercise of part or all of
the option and a stop transfer order may be placed with the Company's transfer
agent. The option shall also be subject to the requirement that, if at any time
the Company determines, in its discretion, that the listing, registration or
qualification of the shares subject to the option upon any securities exchange
or under any state or Federal law, or the consent or approval of any
governmental regulatory body is necessary or desirable as a condition of, or in
connection with, the issue or purchase of shares thereunder, the option may not
be exercised in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or obtained free of
any conditions not acceptable to the Company.
3. The term of the option is ten (10) years, but is subject to earlier
expiration as provided in paragraph 5. The option thus is not exercisable to
any extent after the expiration of ten (10) years from the date of this option
certificate, or after any earlier expiration date that may be applicable under
the terms of paragraph 5, unless the Board extends the term of the option for
such additional period as the Board, in its discretion, determines, provided
that in no event shall the aggregate option period, including the original term
of the option and any extensions thereof, exceed ten (10) years.
1
<PAGE>
4. The options shall not be transferable except: (i) to an Independent
Trustee's employer or an affiliate of such employer, (ii) to one or more trusts
established solely for the benefit of one or more members of the Independent
Trustee's family or to one or more partnerships in which the only partners are
members of the Independent Trustee's family or (iii) by will or the laws of
descent and distribution. An Independent Trustee or his/her assignee shall
provide the Company written notice of any such transfer, and any such transfer
shall not effect the conditions of the exercise of the Option except as
otherwise noted herein or in the Plan.
5. In the event the Trustee is removed by a vote of the shareholders "for
cause" under the Company's Amended and Restated Declaration of Trust and Bylaws
the term of any option granted hereunder shall toll, and all rights to purchase
shares pursuant thereto must be exercised within six months from the termination
date.
6. The number of shares subject to the option shall be adjusted as
follows: (a) in the event that the Company's outstanding number of Common Shares
is changed by any share dividend, share split or combination of shares, the
number of shares subject to the option shall be proportionately adjusted; (b) in
the event of any merger, consolidation or reorganization of the Company with any
other trust, corporation or corporations, there shall be substituted on an
equitable basis as determined by the Board for each Common Share then subject to
the option, the number and kind of shares of stock or other securities to which
the holders of beneficial interest of the Company will be entitled pursuant to
the transaction; and (c) in the event of any other relevant change in the
capitalization of the Company, the Board shall provide for an equitable
adjustment in the number of shares of beneficial interest then subject to the
option. In the event of such adjustment, the purchase price per share shall be
proportionately adjusted.
7. Notwithstanding any other provisions in the Plan, during the period of
thirty (30) days after any "change in control," each Optionholder shall have the
right to require the Company to purchase from him any option granted under the
Plan and held by him at a purchase price equal to (a) the excess of the "Fair
Market Value" (as defined in the Plan) per share over the option price (b)
multiplied by the number of option shares specified by him for purchase in a
written notice to the Company, attention of the Secretary. The amount payable
to each Optionholder by the Company shall be in cash or by certified check and
shall be reduced by any taxes required to be withheld.
8. The granting of this option shall not modify in any way the terms and
conditions of the Trustee Agreement (if any).
9. The Optionholder(s) shall not have any rights of shareholders with
respect to the shares of beneficial interest subject to the option until such
shares of beneficial interest are actually issued upon exercise of the option.
[The remainder of this page intentionally is left blank]
2
<PAGE>
IN WITNESS WHEREOF, this instrument has been executed by the duly
authorized officer of the Company on the date above written.
Great Lakes REIT
By: , Secretary
------------------------------------------------
Richard L. Rasley
3
<PAGE>
EXHIBIT 5
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]
July 29, 1998
Great Lakes REIT
Suite 300
823 Commerce Drive
Oak Brook, Illinois 60523
Re: Registration Statement on Form S-8
(Registration No. 333-56617): Amended and
RESTATED OPTION PLAN FOR INDEPENDENT TRUSTEES
----------------------------------------------
Ladies and Gentlemen:
We have served as Maryland counsel to Great Lakes REIT, a Maryland real
estate investment trust (the "Company"), in connection with certain matters
of Maryland law arising out of the registration of 242,409 common shares (the
"Shares") of beneficial interest, $.01 par value per share, of the Company
("Common Shares") 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 Amended and Restated Option Plan for Independent Trustees (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, and all amendments thereto, 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;
<PAGE>
Great Lakes REIT
July 29, 1998
Page 2
2. The Amended and Restated Declaration of Trust of the Company (the
"Declaration of Trust"), 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 the date hereof by its
Secretary;
4. Resolutions adopted by the Board of Trustees of the Company
relating to (a) the approval of the Plan and (b) the issuance and
registration of the Shares, certified as of the date hereof by the Secretary
of the Company;
5. The Plan;
6. A specimen of the certificate evidencing Common Shares, certified
as of the date hereof by the Secretary of the Company;
7. A certificate of the SDAT as to the good standing of the Company,
dated as of a recent date;
8. A certificate executed by the Secretary of the Company, dated the
date hereof; 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.
<PAGE>
Great Lakes REIT
July 29, 1998
Page 3
4. Any Documents submitted to us as originals are authentic. Any
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 has been no oral or written modification of or amendment
to any of the Documents, and there has been no waiver of any provision of any
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 the Declaration of Trust.
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 real estate investment trust duly formed 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 and
otherwise in the manner described in the Resolutions and the Plan, will be
(assuming that upon any such issuance the total number of Common Shares
issued and outstanding will not exceed the total number of Common Shares that
the Company is then authorized to issue under the Declaration of Trust)
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 any federal or state securities
laws, including the securities 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.
<PAGE>
Great Lakes REIT
July 29, 1998
Page 4
This opinion is being furnished to you for submission to the 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 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,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Post Effective Amendment No.
1 to the Registration Statement (Form S-8 No. 333-56617) pertaining to the
Great Lakes REIT Amended and Restated Option Plan For Independent Trustees of
Great Lakes REIT of our reports indicated below filed with the Securities and
Exchange Commission.
<TABLE>
<CAPTION>
Financial Statements Date of Auditors' Report
--------------------- -------------------------
<S> <C>
Consolidated financial statements and schedule of January 29, 1998,
Great Lakes REIT, Inc. included in its Annual Report except for Note 14
(Form 10-K) for the year ended December 31, 1997 as to which the
date is March 13,
1998
Statement of revenue and certain expenses of TRI- December 17, 1997
ATRIA Office Building for the year ended December 31,
1996 included in the Current Report (Form 8-K/A) of
Great Lakes REIT, Inc. dated February 6, 1998
Statement of revenue and certain expenses of 777 December 19, 1997
Eisenhower Plaza for the year ended December 31, 1996
included in the Current Report (Form 8-K/A) of Great
Lakes REIT, Inc. dated February 6, 1998
Statement of revenue and certain expenses of Star April 9, 1998
Bank Office Building for the year ended December 31,
1997 included in the Current Report (Form 8-K/A) of
Great Lakes REIT, Inc. dated June 18, 1998
Combined statement of revenue and certain expenses of May 21, 1998
Milwaukee Portfolio for the year ended December 31,
1997 included in the Current Report (Form 8-K/A) of
Great Lakes REIT, Inc. dated June 18, 1998
Combined statement of revenue and certain expenses of June 18, 1998
Inverness Properties for the year ended December 31,
1997 included in the Current Report (Form 8-K/A) of
Great Lakes REIT, Inc. dated July 24, 1998
</TABLE>
Ernst & Young LLP
Chicago, Illinois
July 28, 1998
