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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SHELBOURNE PROPERTIES II, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 6798 Applied for
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(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification Number)
incorporation or organization) Classification Code Number)
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SHELBOURNE PROPERTIES II, INC.
5 CAMBRIDGE CENTER
9th FLOOR
CAMBRIDGE, MA 02142
(617) 234-3000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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COPY TO:
MARK I. FISHER, ESQ.
TODD J. EMMERMAN, ESQ.
ROSENMAN & COLIN LLP
575 MADISON AVENUE
NEW YORK, NEW YORK 10022
(212) 940-8800
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Approximate Date of Commencement of Proposed Sale to the
Public: From time to time after this Registration Statement becomes effective.
If the securities being registered on this form are being
offered in connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box. / /
If the Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
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.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
The REIT's Certificate, as amended, and Bylaws provide certain
limitations on the liability of the REIT's directors and officers for monetary
damages to the REIT. The Certificate and Bylaws obligate the REIT to indemnify
its directors and officers, and permit the REIT to indemnify its employees and
other agents, against certain liabilities incurred in connection with their
service in such capacities. These provisions could reduce the legal remedies
available to the REIT and the stockholders against these individuals. See
"Certain Provisions of Delaware Law and The REIT's Certificate and
Bylaws--Limitation of Liability and Indemnification."
The REIT's Certificate limits the liability of the REIT's
directors and officers to the REIT to the fullest extent permitted from time to
time by Delaware law. The DGCL permits, but does not require, a corporation to
indemnify its directors, officers, employees or agents and expressly provides
that the indemnification provided for under the DGCL shall not be deemed
exclusive of any indemnification right under any bylaw, vote of stockholders or
disinterested directors, or otherwise. The DGCL permits indemnification against
expenses, legal fees and certain other liabilities arising out of legal actions
brought or threatened against such persons for their conduct on behalf of the
corporation, provided that each person acted in good faith and in a manner that
be reasonably believed was in or not opposed to the REIT's best interests and in
the case of a criminal proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The DGCL does not allow indemnification of directors in
the case of an action by or in the right of the corporation (including
stockholder derivative suits) unless the directors successfully defend the
actions or indemnification is ordered by the court.
The REIT has entered into indemnification agreements with each
of its directors and executive officers. The indemnification agreements require,
among other matters, that the REIT indemnify its directors and officers to the
fullest extent permitted by law and advance to the directors and officers all
related expenses including legal fees, subject to reimbursement if it is
subsequently determined that indemnification is not permitted. Under these
agreements, the REIT must also indemnify and advance all expenses including
legal fees incurred by directors and officers seeking the enforce their rights
under the indemnification agreements and may cover directors and officers under
the REIT's directors' and officers' liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by law, it provides additional assurance to directors and officers that
indemnification will be available because, as a contract, it cannot be modified
unilaterally in the future by the Board of Directors or the Stockholders to
eliminate the rights it provides. It is the position of the SEC that
indemnification of directors and officers for liabilities under the Securities
Act of 1933, as amended (the "Securities Act") is against public policy and
unenforceable pursuant to Section 14 of the Securities Act.
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Item 21. Exhibits and Financial Statement Schedules
(a) The following documents are filed as part of this Registration
Statement:
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Exhibit # Description
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2.1** Form of Merger Agreement (included as Appendix C to the Consent
Solicitation Statement/Prospectus included as Part I of this
Registration Statement).
3.1** Form of Amended and Restated Certificate of Incorporation of the REIT
3.2** Form of Amended and Restated Bylaws of the REIT
4.1** Form of Amended and Restated Agreement of Limited Partnership of the
4.2* Form of Shareholders Rights Agreement
4.3* Certificate of Designations, Preferences and Rights of Series A
5.1* Opinion of Rosenman & Colin LLP regarding legality of the shares of
8.1* Opinion of Rosenman & Colin LLP regarding tax matters
10.1* Form of Indemnification Agreement between the REIT and each of its
10.2* Form of Advisory Agreement
12.1* Statement of computation of ratios
23.1** Consent of Rosenman & Colin LLP
23.2 Consent of Independent Accountants
24.1** Power of Attorney (included as a part of Part II of this
99.1** Form of Consent Form (included as Appendix A to the Consent
Solicitation Statement/Prospectus included as Part I of this
Registration Statement).
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*TO BE FILED BY AMENDMENT
**PREVIOUSLY FILED
(b) Financial Statement Schedules
The financial statement schedules are incorporated by
reference to High Equity Partners -Series 86 Annual Report on Form 10-K for the
fiscal year ended December 31, 1998 and Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1999.
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Item 22. 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;"
(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.
(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) The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the
prospectus is sent or given, the latest annual report, to security holders
that is incorporated by reference in the prospectus and furnished pursuant
to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not set forth in
the prospectus, to deliver, or cause to be delivered to each person to whom
the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such
interim financial information.
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(d) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers or
persons controlling the registrant pursuant to the foregoing provisions, or
otherwise, 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. 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.
(e) (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 proceeding, 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."
(f) 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.
(g) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant has duly caused this Amendment No. 1 to the Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of New York, New York on February 14, 2000.
Shelbourne Properties II, Inc.
By: /s/ Michael L. Ashner
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Michael L. Ashner
President and Chairman of the Board
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Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 1 to Registration Statement on Form S-4 of Shelbourne
Properties II, Inc.has been signed by the following persons in the capacities
and on the dates indicated.
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Signature Capacity Date
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/s/ Michael L. Ashner
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Michael L. Ashner President February 14, 2000
/s/ Peter Braverman*
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Peter Braverman Vice President and Director February 14, 2000
/s/ David T. Hamamoto*
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David T. Hamamoto Director February 14, 2000
/s/ David King*
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David King Vice President and Director February 14, 2000
/s/ Robert Martin*
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Robert Martin Director February 14, 2000
/s/ W. Edward Scheetz*
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W. Edward Scheetz Director February 14, 2000
/s/ Steven Stuart*
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Steven Stuart Director February 14, 2000
/s/ Carolyn Tiffany*
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Carolyn Tiffany Vice President and Treasurer February 14, 2000
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* BY MICHAEL L. ASHNER, ATTORNEY-IN-FACT
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EXHIBIT INDEX
Exhibit # Description Page
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2.1** Form of Merger Agreement (included as Appendix C to the Consent Solicitation Statement/
Prospectus included as Part I of this Registration Statement).
3.1** Form of Amended and Restated Certificate of Incorporation of the REIT
3.2** Form of Amended and Restated Bylaws of the REIT
4.1** Form of Amended and Restated Agreement of Limited Partnership of the Operating Partnership
(included as Appendix B to the Consent Solicitation Statement/Prospectus included as Part I
of this Registration Statement).
4.2* Form of Shareholders Rights Agreement
4.3* Certificate of Designations, Preferences and Rights of Series A Preferred Stock
5.1* Opinion of Rosenman & Colin LLP regarding legality of the shares of the Common Stock issued
8.1* Opinion of Rosenman & Colin LLP regarding tax matters
10.1* Form of Indemnification Agreement between the REIT and each of its directors and executive
officers
10.2* Form of Advisory Agreement
12.1* Statement of computation of ratios
23.1** Consent of Rosenman & Colin LLP
23.2 Consent of Independent Accountants
24.1** Power of Attorney (included as a part of Part II of this Registration Statement)
99.1** Form of Consent Form (included as Appendix A to the Consent Solicitation Statement/
Prospectus included as Part I of this Registration Statement).
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*TO BE FILED BY AMENDMENT
**PREVIOUSLY FILED
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Shelbourne Properties II, Inc. on Form S-4 of our report dated March 17, 1999
appearing in the Annual Report on Form 10-K of High Equity Partners L.P. -
Series 86 for the year ended December 31, 1998.
DELOITTE & TOUCHE LLP
Stamford, Connecticut
February 11, 2000
