UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAPITAL TRUST
(Exact name of registrant as specified in its charter)
California 94-6181186
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
605 Third Avenue, 26th Floor 10016
New York, New York (Zip Code)
(Address of Principal Executive Offices)
Capital Trust 1997 Non-Employee Trustee Share Plan and
Capital Trust 1997 Long-Term Incentive Share Plan
(Full title of the plan)
John R. Klopp
Vice Chairman
and Chief Executive Officer
605 Third Avenue, 26th Floor
New York, New York 10016
(Name and address of agent for service)
(212) 655-0220
(Telephone Number, Including Area Code, of Agent for Service)
Calculation of Registration Fee
<TABLE>
<CAPTION>
===================================================================================================================================
Proposed maximum Amount of
Amount to be offering price per Proposed maximum registration
Title of securities to be registered registered share(1) aggregate offering price(1) fee(1)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Shares of Beneficial Interest, 2,000,000 $12.44 $24,880,000 $7,539.39
$1.00 Par Value
- -----------------------------------------------------------------------------------------------------------------------------------
Total
===================================================================================================================================
</TABLE>
(1) Pursuant to paragraphs (c) and (h) of Rule 457 of the Securities Act of
1933, as amended (the "Securities Act"), the proposed maximum offering
price per share of such Class A Common Shares is estimated solely for the
purpose of determining the registration fee and is based upon the average
of the high and low prices per share of the Registrant's Class A Common
Shares reported on The New York Stock Exchange on November 5, 1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this Item will be
sent or given to employees or trustees, as the case may be, who have been
granted class A common shares of beneficial interest, $1.00 par value, in
Capital Trust ("Class A Common Shares") or instruments exercisable for or
convertible into Class A Common Shares ("Awards") under the Capital Trust 1997
Long-Term Incentive Share Plan (the "Incentive Share Plan") and the 1997
Non-Employee Trustee Share Plan (the "Trustee Plan" together with the Incentive
Share Plan, are collectively referred to as the "Plans"), and are not being
filed with, or included in, this Registration Statement on Form S-8 (the
"Registration Statement") in accordance with the rules and regulations of the
Securities and Exchange Commission (the "Commission").
Item 2. Registration Information and Employee Plan Annual Information
The documents containing the information specified in this Item will be
sent or given to employees who have been granted Awards under the Plans and are
not being filed with, or included in, this Registration Statement in accordance
with the rules and regulations of the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which have been heretofore filed with
the Commission by Capital Trust, a California trust (formerly known as
California Real Estate Investment Trust) (the "Registrant"), are incorporated by
reference in this Registration Statement:
(a) The Registrant's annual report on Form 10-K for the fiscal
year ended December 31, 1996 (File Number 1-8063), as filed with the Commission
on April 15, 1997, as amended by the Registrant's annual report on Form
10-K/A, as filed with the Commission on June 2, 1997.
(b) (i) The Registrant's quarterly report on Form 10-Q for the
fiscal quarter ended March 31, 1997, as filed with the Commission on May 14,
1997.
(ii) The Registrant's quarterly report on Form 10-Q for
the fiscal quarter ended June 30, 1997, as filed with the Commission on
August 14, 1997.
(iii) The Registrant's quarterly report on Form 10-Q/A for
the fiscal quarter ended March 31, 1997, as filed with the Commission on
October 17, 1997.
(iv) The Registrant's current report on Form 8-K, dated
January 3, 1997, as filed with the Commission on January 21, 1997.
-2-
<PAGE>
(v) The Registrant's current report on Form 8-K, dated
April 10, 1997, as filed with the Commission on April 16, 1997.
(vi) The Registrant's current report on Form 8-K, dated
February 14, 1997, as filed with the Commission on June 12, 1997.
(vii) The Registrant's current report on Form 8-K, dated
June 30, 1997, as filed with the Commission on July 15, 1997.
(viii) The Registrant's current report on Form 8-K, dated
July 15, 1997, as filed with the Commission on July 30, 1997.
(ix) The Registrant's current report on Form 8-K, dated
August 4, 1997, as filed with the Commission on August 19, 1997.
(x) The Registrant's current report on Form 8-K, dated
August 13, 1997, as filed with the Commission on August 28, 1997.
(xi) The Registrant's current report on Form 8-K, dated
September 19, 1997, as filed with the Commission on October 3, 1997.
(xii) The Registrant's current report on Form 8-K/A, dated
August 4, 1997, as filed with the Commission on October 17, 1997.
(xiii) The Registrant's current report on Form 8-K/A,
dated August 13, 1997, as filed with the Commission on October 27, 1997.
(c) The description of the Registrant's Class A Common Shares
contained in the Registrant's Schedule 14A Definitive Proxy Statement under the
caption "Description of Capital Shares", as filed with the Commission on June
17, 1997 (File Number 1-8063) pursuant to Section 14(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such 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 incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
-3-
<PAGE>
Item 5. Interests of Named Experts and Counsel
Mr. Martin L. Edelman, a Trustee of the Registrant, is also of
Counsel to the law firm of Battle Fowler LLP which is rendering the opinion
regarding the legality of the securities being registered in this Registration
Statement. As a Trustee, Mr. Edelman has and is, to receive Awards under the
Trustee Plan.
Item 6. Indemnification of Directors and Officers
The Registrant is a California business trust.
Section 2.1. of the Registrant's by-laws provides that no
Trustee, officer, employee or agent of the Company shall be liable to the
Company or to any other Person for any act or omission which he or she
reasonably believes is in the best interests of the Company, except for his or
her own willful misconduct, bad faith, gross negligence or reckless disregard of
duty or his or her failure to act in good faith or in the best interests of the
Company.
The Trustees, officers, employees and agents of the Company
shall be deemed to be acting as Trustees, officers, employees or agents of the
Company and not in their own individual capacities when incurring any debts,
liabilities or obligations or when taking or omitting any other action on behalf
of, or in connection with, the Company. Notwithstanding any provision herein to
the contrary, no Trustee, officer, employee or agent of the Company shall be
liable for any debt, claim, demand, judgment, decree, liability or obligation of
any kind in tort, contract or otherwise of, against or with respect to the
Company arising out of any action taken or omitted for or on behalf of the
Company, and the Company shall be solely liable therefor and recourse shall be
solely to the assets of the Company for the payment or performance thereof.
In Section 2.2 of the Registrant's by-laws, the Company agrees
to indemnify and hold harmless any Person made a party to any action, suit or
proceeding or against whom a claim or liability is asserted by reason of the
fact that he, she, his or her testator or intestate was or is a Trustee,
officer, employee or agent of the Company or active in such capacity on behalf
of the Company against judgments, fines, amounts paid on account thereof
(whether in settlement or otherwise) and reasonable expenses, including
attorneys' fees, actually and reasonably incurred by him in connection with the
defense of such action, suit or proceeding or in connection with any appeal
therein, whether or not such suit or action proceeds to judgment or is settled
or otherwise brought to a conclusion. Notwithstanding the above, no Person shall
be so indemnified or reimbursed for any claim, obligation or liability which
shall have been adjudicated to have arisen out of or been based upon such
Person's willful misfeasance, bad faith, gross negligence or reckless disregard
of duty or for his or her failure to act in good faith in the reasonable belief
that his or her action was in the best interests of the Company. Any Person
seeking indemnification under this Section 2.2 shall give prompt notice to the
Company of the claim, alleged liability, action, suit or proceeding; provided,
that the failure to give such notice shall not relieve the Company of its
obligations under this Section 2.2, except to the extent that such failure to
give notice prejudices the Company. Such rights of indemnification and
reimbursement shall be satisfied solely out of the assets of the Company.
Section 2.2 states that the rights accruing to any Person
shall not exclude any other right to which he or she may be lawfully entitled,
nor shall anything contained herein restrict the right of the Company to
indemnify or reimburse such Person in any proper case even though not
specifically provided for herein, nor shall anything contained herein restrict
such rights of a Trustee to contribution as may be available under applicable
law. In addition, the Board shall make advance payments for expenses incurred
-4-
<PAGE>
in defending any proceeding in advance of its final disposition in connection
with indemnification under Section 2.2 provided that the indemnified Person
agrees in writing to reimburse the Company in the event it is subsequently
determined that he or she is not entitled to such indemnification.
The Company shall have the power to enter into individual
indemnification agreements with any Person entitled to be indemnified under
Section 2.2, without approval thereof by the Shareholders, provided that the
substantive provisions of any such agreement shall not be inconsistent in any
material respect with the provisions of this Section 2.2 at the time such
agreement is entered into. The terms of any such agreement need not be identical
to the terms of any other such agreement and any such agreement which has been
entered into may subsequently be amended or changed by mutual agreement of the
parties thereto, without approval thereof by the Shareholders, so long as at the
time such agreement is entered into or amended or changed, as the case may be,
its substantive provisions are not inconsistent in any material respect with the
provisions of Section 2.2.
The Company shall have the power to use the assets of the
Company to establish arrangements for funding its indemnification obligations
under Section 2.2, including but not limited to depositing assets in trust
funds, obtaining bank letters of credit in favor of indemnified Persons or
entities, establishing specific reserve accounts and otherwise funding special
self-insurance arrangements for these purposes.
ARTICLE FOURTEENTH of the Registrant's amended and restated
declaration of trust reads as follows:
"The Company may, to the full extent permitted by law, cause
the Company to limit the liability of and indemnify any and all Trustees,
officers, employees or agents from and against any and all expenses, liabilities
or other matters both as to action in his or her official capacity on behalf of
the Company and as to action in another capacity while holding such office, and
shall continue as to a Person who has ceased to be a Trustee, officer, employee
or agent and shall inure to the benefit of the heirs, executors, and
administrators of such Person, as provided in any By-Law adopted by a majority
of the Board.
All Persons dealing with or having any claim against the
Trustees or any officer, agent or employee of the Company shall look only to the
Company for the payment of any debt, claim, obligation or damage, or of any
money or other thing that might become due or payable in any way, whether
founded upon contract, tort or otherwise, and no Shareholder shall be personally
or individually liable therefor. Each Shareholder shall be entitled to pro rata
indemnity from the Company's assets if, contrary to the provisions hereof, such
Shareholder is held to any personal liability for any debt, claim, obligation or
damage, or of any money or other thing that might become due or payable in any
way, whether founded upon contract, tort or otherwise, of the Company.
The Board shall maintain liability insurance for the
protection of the Company and those connected therewith, and cause any premiums
therefor to be paid from Company assets."
Item 7. Exemption from Registration Claimed.
Not applicable.
-5-
<PAGE>
Item 8. Exhibits.
4.1 1997 Non-Employee Trustee Share Plan, as amended (filed as Exhibit
10.1 to the Registrant's Current Report on Form 8-K filed on July
15, 1997 and is incorporated herein by reference).
4.2 1997 Long-Term Incentive Share Plan, as amended (filed as Exhibit
10.2 to the Registrant's Current Report on Form 8-K filed on July
15, 1997 and is incorporated herein by reference).
5.1 Opinion of Greenberg Glusker Fields Claman & Machtinger LLP
regarding the legality of the securities being registered.
23.1 Consent of Coopers & Lybrand, LLP.
23.2 Consent of Greenberg Glusker Fields Claman & Machtinger
LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (contained in the signature pages hereto).
Item 9. Undertakings.
(a) The 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;
ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
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) (ss.230.424(b) of this chapter) if, in the
aggregate, the changes in volume and price represent no more
than a 20% 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 this Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above 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.
-6-
<PAGE>
(2) 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered hereby 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, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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 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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by 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 Securities Act and will be governed by the final
adjudication of such issue.
-7-
<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
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on this 7th day of
November, 1997.
CAPITAL TRUST
By: /s/ John R. Klopp
John R. Klopp
Vice Chairman and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints John R. Klopp and Edward L.
Shugrue III his true and lawful attorney-in-fact and agents, each acting alone,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments to
this Registration Statement, including post-effective amendments, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, and hereby ratifies and confirms
all his said attorneys-in-fact and agents, each acting alone, or his substitute
or substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Name Title Date
<S> <C> <C>
/s/ John R. Klopp Vice Chairman and Chief November 7, 1997
- -----------------------------
John R. Klopp Executive Officer (principal
executive officer)
/s/ Edward L. Shugrue III Managing Director and Chief November 7, 1997
- -------------------------- Financial Officer
Edward L. Shugrue III (principal financial
officer)
</TABLE>
-8-
<PAGE>
<TABLE>
<CAPTION>
Name Title Date
<S> <C> <C>
/s/ Samuel Zell Chairman of the Board of November 7, 1997
- ------------------------------
Samuel Zell Trustees
/s/ Martin L. Edelman Trustee November 7, 1997
- --------------------------
Martin L. Edelman
/s/ Craig M. Hatkoff Trustee November 7, 1997
- ---------------------------
Craig M. Hatkoff
/s/ Gary R. Garrabrant Trustee November 7, 1997
- ---------------------------
Gary R. Garrabrant
/s/ Sheli Z. Rosenberg Trustee November 7, 1997
- ---------------------------
Sheli Z. Rosenberg
/s/ Lynne B. Sagalyn Trustee November 7, 1997
- ----------------------------
Lynne B. Sagalyn
/s/ Jeffrey A. Altman Trustee November 7, 1997
- -----------------------------
Jeffrey A. Altman
</TABLE>
-9-
<PAGE>
EXHIBIT INDEX
Exhibits
4.1 1997 Non-Employee Trustee Share Plan (filed as Exhibit 10.2 to
the Registrant's Current Report on Form 8-K filed on July 15,
1997 and is incorporated herein by reference)
4.2 1997 Long-Term Incentive Share Plan (filed as Exhibit 10.1 to
the Registrant's Current Report on Form 8-K filed on July 15,
1997 and is incorporated herein by reference)
5.1 Opinion of Greenberg Glusker Fields Claman & Machtinger LLP
regarding the legality of the securities being registered
23.1 Consent of Coopers & Lybrand, LLP
23.2 Consent of Greenberg Glusker Fields Claman & Machtinger LLP
(contained in Exhibit 5.1)
24.1 Power of Attorney (contained in the signature page hereof)
<PAGE>
Exhibit 5.1
[GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP Letterhead]
November 6, 1997
Capital Trust
605 Third Avenue
New York, New York 10016
Re: 1997 Non-Employee Trustee Share Plan
and 1997 Long-Term Incentive Share Plan
---------------------------------------
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") in connection with the registration under the
Securities Act of 1933, as amended, of 2,000,000 class A common shares of
beneficial interest, $1.00 par value (the "Shares"), in Capital Trust that have
been or will be granted, or issued upon the exercise or conversion of
instruments granted, under the Capital Trust 1997 Long-Term Incentive Share Plan
and the 1997 Non-Employee Trustee Share Plan (collectively, the "Plans"). These
Shares are authorized and unissued securities to be issued and sold in the
manner set forth in the Plans.
As California counsel for Capital Trust, we are familiar with the
proceedings taken and proposed to be taken in connection with the adoption of
the Plans. We are of the opinion that, when issued and sold in the manner set
forth in the Plans, all of the Shares will be legally and validly issued and
outstanding, fully paid and non-assessable.
652163.1
<PAGE>
Capital Trust
November 6, 1997
Page 2
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of our name therein.
Very truly yours,
GREENBERG GLUSKER FIELDS
CLAMAN & MACHTINGER LLP
652163.1
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference the registration statement of
Capital Trust (f/k/a California Real Estate Investment Trust) on Form S-8 (File
No. ____________), of our report dated February 14, 1997, on our audits of the
consolidated financial statements California Real Estate Investment Trust and
its subsidiary as of December 31, 1996 and 1995 and for the years ended December
31, 1996, 1995 and 1994.
San Francisco, California Coopers & Lybrand LLP
November 4, 1997
652301.1
