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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 III, INC.
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
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 III, 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:
Exhibit # Description
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
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).
*TO BE FILED BY AMENDMENT
**PREVIOUSLY FILED
(b) Financial Statement Schedules
The financial statement schedules are incorporated by reference to High
Equity Partners -Series 88 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 III, 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 the Registration Statement on Form S-4 of Shelbourne
Properties III, Inc.has been signed by the following persons in the capacities
and on the dates indicated.
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
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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).
*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 III, 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 88 for the year ended December 31, 1998.
DELOITTE & TOUCHE LLP
Stamford, Connecticut
February 11, 2000
