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As filed with the Securities and Exchange Commission on November 23, 1999
Registration No. 333-34541
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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Post-Effective Amendment No. 2 to
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PACIFIC GATEWAY PROPERTIES, INC.
(Exact Name of Registrant as Specified in its Charter)
MARYLAND 04-2816560
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
930 MONTGOMERY STREET 94133
SAN FRANCISCO, CALIFORNIA (Zip Code)
(Address of Principal Executive Offices)
PACIFIC GATEWAY PROPERTIES, INC.
INCENTIVE STOCK OPTION PLAN
and
PACIFIC GATEWAY PROPERTIES, INC.
1996 STOCK OPTION PLAN
(Full Title of the Plans)
RAYMOND V. MARINO
PRESIDENT AND CHIEF EXECUTIVE OFFICER
930 MONTGOMERY STREET
SAN FRANCISCO, CA 94133
(Name and Address of Agent for Service)
(415) 398-4800
(Telephone Number, Including Area Code, of Agent for Service)
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Copies of all communications, including all communications sent to agent
for service, should be sent to:
LAWRENCE CALOF, ESQ.
GIBSON, DUNN & CRUTCHER LLP
1530 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 849-5300
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EXPLANATORY NOTE
This Post-Effective Amendment No. 2 (the "Amendment") to the
Registration Statement on Form S-8 (File No. 333-34541) (the "Registration
Statement") is being filed pursuant to Rule 414 under the Securities Act of 1933
by Pacific Gateway Properties, Inc., a Maryland corporation ("Pacific Gateway
Maryland" or the "Registrant"), which is the successor to Pacific Gateway
Properties, Inc., a New York corporation ("Pacific Gateway New York"), following
a merger effective on September 1, 1999, effected for the purpose of changing
Pacific Gateway New York's state of incorporation to Maryland. Before the
merger, Pacific Gateway Maryland had no assets or liabilities other than nominal
assets or liabilities. In connection with the merger, Pacific Gateway Maryland
succeeded to all of the assets and liabilities of Pacific Gateway New York. The
merger was approved by the shareholders of Pacific Gateway New York at a meeting
for which proxies were solicited pursuant to Section 14(a) of the Securities
Exchange Act of 1934. In connection with the merger, Pacific Gateway Maryland,
by virtue of this Amendment, expressly adopts the Registration Statement as its
own registration statement for all purposes of the Securities Act and the
Exchange Act.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Omitted from this Registration Statement in accordance with
the Explanatory Note to Part 1 of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Omitted from this Registration Statement in accordance with
the Explanatory Note to Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which previously have been filed by the Registrant with
the Securities and Exchange Commission, are incorporated by reference and made a
part hereof:
(1) Pacific Gateway New York's Annual Report on Form 10-K for the year
ended December 31, 1998 and the amendment thereto;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in (i) above;
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(3) The description of the Common Stock set forth in the Registrant's
registration statement on Form 8-A, filed pursuant to Section 12(g) of
the Exchange Act, as amended by the Registrant's Report on Form 8-K
filed on September 7, 1999.
All reports and other documents filed by the Registrant since the end of the
fiscal year covered by the Registrant's document referred to in paragraph (1)
above pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all such securities then remaining unsold
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such reports and documents.
Any statement contained herein or in 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 which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
earlier statement. Any 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. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Charter limits the liability of its directors and
officers to the Registrant and its stockholders for money damages to the fullest
extent permitted by Maryland statutory or decisional law. Maryland law presently
permits the liability of directors and officers to a corporation or its
stockholders for money damages to be limited, except (i) to the extent that it
is proved that the director or officer actually received an improper benefit or
profit in money property or services for the amount of the benefit or profit in
money, property or services actually received, or (ii) to the extent that a
judgment or other final adjudication adverse to the person is entered in a
proceeding based on a finding that the director's or officer's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. This provision
does not limit the ability of the Registrant or its stockholders to obtain other
relief, such as an injunction or rescission.
The Registrant's Charter requires the Registrant to indemnify (i) its
directors to the fullest extent provided by Maryland law now or hereafter in
effect, including the advance of legal expenses and other reasonable costs under
the procedures provided by such laws, (ii) its officers to the same extent it
indemnifies its directors, and (iii) its officers who are not directors to such
further extent as shall be authorized by the Board of Directors and be
consistent with law. The
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Registrant's Charter allows the Registrant to obligate itself to indemnify and
to advance legal expenses and reasonable costs to certain other individuals to
the fullest extent provided by Maryland law now or hereafter in effect. The
Registrant's By-laws provide for indemnification of the Registrant's "authorized
representatives" to the fullest extent provided by Maryland law.
The Maryland General Corporation Law permits a corporation to indemnify
its directors, officers and certain other parties against judgments, penalties,
fines, settlements and reasonable expenses incurred by them in connection with
any proceeding to which they may be made a party by reason of their service to
or at the request of the corporation, unless it is established that (i) the act
or omission of the indemnified party was material to the matter giving rise to
the proceeding and (x) was committed in bad faith or (y) was the result of
active and deliberate dishonesty, (ii) the indemnified party actually received
an improper personal benefit in money, property or services or (iii) in the case
of any criminal proceeding, the indemnified party had reasonable cause to
believe that the act or omission was unlawful. Indemnification may be made
against judgments, penalties, fines, settlements and reasonable expenses
(including attorneys' fees) actually incurred by the director or officer in
connection with the proceeding.
Indemnification is limited to court-ordered reimbursement for expenses;
however, if the proceeding is one by or in the right of the corporation, and the
director or officer was adjudged to be liable to the corporation or if the
proceeding is one charging improper personal benefit to the director or officer
and the director or officer was adjudged to be liable on the basis that personal
benefit was improperly received. The termination of any proceeding by
conviction, or upon a plea of nolo contendere or its equivalent, or an entry of
any order of probation prior to judgment, creates a rebuttable presumption that
the director or officer did not meet the requisite standard of conduct required
for indemnification to be permitted. Maryland law requires a corporation (unless
its charter provides otherwise, which the Registrant'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. It is the position of the Securities and
Exchange Commission that indemnification of directors and officers for
liabilities arising under the Securities Act is against public policy and is
unenforceable pursuant to Section 14 of the Securities Act.
The Registrant carries an insurance policy providing directors' and
officers' liability insurance for any liability its directors or officers or the
directors or officers of any of its subsidiaries may incur in their capacities
as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by
reference to another filing of the Registrant with the Commission, each of the
following exhibits is filed herewith:
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EXHIBIT NO. DESCRIPTION
4.1 Certificate of Incorporation of Pacific Gateway Properties,
Inc. (incorporated by reference to Exhibit 3.1 of the
Registrant's Form S-4 (File No. 333-67071) as filed on
November 10, 1998).
4.2 By-Laws of Pacific Gateway Properties, Inc. (incorporated by
reference to Exhibit 3.2 of the Registrant's Form S-4 (File
No. 333-67071) as filed on November 10, 1998).
23.1 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney.*
* Previously filed.
ITEM 9. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933, as
amended (the "Securities Act");
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement. 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 a 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 (1)(a)(i) and (1)(a)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
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(b) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering
thereof.
(c) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(2) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 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 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.
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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
the requirements for filing on Form S-8 and has duly caused this Post-Effective
Amendment No. 2 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in San Francisco, California, on this
23rd day of November, 1999.
PACIFIC GATEWAY PROPERTIES, INC.
By: /s/Raymond V. Marino
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Raymond V. Marino
Its: President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment to the registration statement has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Raymond V. Marino President, Chief Executive November 23, 1999
- ---------------------------- Officer and Director
Raymond V. Marino (Principal Executive and Financial
Officer)
/s/ Melanie L. Adkins Controller--Corporate November 23, 1999
- ---------------------------- (Principal Accounting Officer)
Melanie L. Adkins
/s/ Neil C. Marck Controller--Management November 23, 1999
- ---------------------------- Company
Neil C. Marck (Principal Accounting Officer)
/s/ Steven A. Calabrese* Director November 23, 1999
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Steven A. Calabrese
/s/ Mark D. Grossi* Director November 23, 1999
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Mark D. Grossi
/s/ Lawrence B. Helzel* Director November 23, 1999
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Lawrence B. Helzel
November 23, 1999
/s/ Christopher L. Jarratt* Director
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Christopher L. Jarratt
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/s/ Richard M. Osborne* Director November 23, 1999
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Richard M. Osborne
November 23, 1999
/s/ Martin S. Roher* Director
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Martin S. Roher
</TABLE>
*By:/s/ Raymond V. Marino
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Raymond V. Marino
ATTORNEY-IN-FACT
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
and to all references to our Firm included in or made a part of this
registration statement.
ARTHUR ANDERSEN LLP
San Francisco, California
November 18, 1999
