As filed with the Securities and Exchange Commission on November 1, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MGI PROPERTIES
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(Exact name of registrant as specified in its charter)
Massachusetts
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(State or other jurisdiction of incorporation or organization)
04-6268740
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(I.R.S. employer identification no.)
30 Rowes Wharf, Boston, Massachusetts 02110
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(Address of principal executive offices) (Zip Code)
Common Share Awards and Options to Purchase
Common Shares Granted to Advisors
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(Full title of the plans)
W. Pearce Coues
Chairman of the Board of Trustees
MGI Properties
30 Rowes Wharf
Boston, Massachusetts 02110
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(Name and address of agent for service)
(617) 330-5335
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed
Title of each Proposed maximum
class of maximum aggregate Amount of
Securities to Amount to be offering price offering registration
be registered registered(1) per share(2) price(2) fee
- ------------- ------------- -------------- --------- -------------
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Common Shares,
par value $1.00
per share 22,880 $15.50 $354,640.00 $122.29
===============================================================================
(1) Represents the sum of (i) 500 Common Shares awarded to a former
employee of the Registrant in December 1988, (ii) 10,380 Common Shares
awarded to certain employees of the Registrant in December 1994 and
(iii) a maximum of 12,000 Common Shares that may be acquired pursuant
to options to purchase Common Shares granted to advisors of the
Registrant (the "Advisors' Options"). Pursuant to Rule 416, this
registration statement also covers such indeterminable additional
securities as may become issuable as a result of any future
anti-dilution adjustment in accordance with the terms of the Advisors'
Options.
(2) Estimated solely for purposes of calculating the registration fee and
computed in accordance with Rule 457(c) promulgated under the
Securities Act of 1933, as amended, using the average of the high and
low prices of the Common Shares reported on the New York Stock
Exchange, Inc. Composite Tape on October 30, 1995.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended November 30, 1994;
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended August 31, 1995, May 31, 1995 and February 28,
1995;
(c) The description of the Registrant's Common Shares, $1.00 par
value, contained in the Registrant's Registration Statements
on Form 8-A filed on March 11, 1988 and June 27, 1989,
respectively.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all Common Shares offered hereby have been sold or which deregisters all Common
Shares offered hereby then remaining unsold, are deemed to be incorporated
herein by reference and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Shares offered hereby will be passed upon
for the Registrant by the firm of Olshan Grundman Frome & Rosenzweig LLP, 505
Park Avenue, New York, New York 10022. Certain members of Olshan Grundman Frome
& Rosenzweig LLP own an aggregate of 8,630 Common Shares and hold options to
purchase an aggregate of 33,400 Common Shares. The Common Shares underlying
12,000 of the options held by members of Olshan Grundman Frome & Rosenzweig LLP
are being registered by this Registration Statement.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 5.3 of the Trust's Second Amended and Restated Declaration of Trust
provides as follows:
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The Trust shall indemnify each of its Trustees, officers, employees and agents
(including any Person who serves at its written request as director, officer,
partner, trustee or the like of another organization in which it has any
interest as a shareholder, creditor or otherwise), against all liabilities and
expenses, including amounts paid in satisfaction of judgments, in compromise or
as fines and penalties, counsel fees, reasonably incurred by him in connection
with the defense or disposition of any action, suit or proceeding, whether civil
or criminal, in which he may be involved or with which he may be threatened,
while acting as Trustee or as an officer, employee or agent, of the Trust or the
Trustees, as the case may be, or thereafter, by reason of his being or having
been such a Trustee, officer, employee or agent, except with respect to any
matter as to which he shall have been adjudicated to have acted in bad faith or
with willful misconduct or reckless disregard of his duties or gross negligence
or not to have acted in good faith in the reasonable belief that his action was
in the best interests of the Trust; provided, however, that a Trustee
adjudicated to have been grossly negligent (i.e., found to have breached his
fiduciary duty of care) may nevertheless be indemnified pursuant to the
provisions of this paragraph consistent with the provisions of Section 5.2; and
provided, further, however, that as to any matter disposed of by a compromise
payment by such Trustee, officer, employee or agent, pursuant to a consent
decree or otherwise, no indemnification either for said payment or for any other
expenses shall be provided unless such compromise shall be approved as in the
best interest of the Trust by a majority of the disinterested Trustees or the
Trust shall have received a written opinion of independent legal counsel to the
effect that such Trustee, officer, employee or agent appears to have acted in
good faith in the reasonable belief that his action was in the best interests of
the Trust. The rights accruing to any Trustee, officer, employee or agent under
these provisions shall not exclude any other right to which he may be lawfully
entitled; provided, however, that no Trustee, officer, employee or agent may
satisfy any right of indemnity or reimbursement granted herein or to which he
may be otherwise entitled except out of the Trust Property, and no Shareholder
shall be personally liable to any Person with respect to any claim for indemnity
or reimbursement or otherwise. The Trustees may make advance payments in
connection with indemnification under this Section 5.3, provided that the
indemnified Trustee, officer, employee or agent shall have given a written
undertaking to reimburse the Trust in the event it is subsequently determined
that he is not entitled to such indemnification.
Any action taken by or conduct on the part of the Adviser, a Trustee, officer,
employee or agent of the Trust in conformity with or in good faith reliance upon
the provisions of Section 2.16 or 3.4 hereof shall not, for purposes of this
Declaration of Trust (including, without limitation, Sections 5.1 and 5.2 hereof
and this Section 5.3), constitute bad faith, willful misconduct, gross
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<PAGE>
negligence or reckless disregard of his duties, or failure to act in good faith
in the reasonable belief that his action was in the best interests of the Trust.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following instruments and documents are included as exhibits to
this Registration Statement.
Exhibit
Number Description
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4 Form of Non-qualified Stock Option Agreement,
incorporated by reference to the Trust's
Registration Statement on Form S-8 filed on July 8,
1993 (File No. 33-65844).
5 Opinion of Olshan Grundman Frome & Rosenzweig LLP.
23.1 Consent of Olshan Grundman Frome & Rosenzweig LLP
(included in their opinion filed as Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP
24 Power of Attorney (included on the Signature Page
to this Registration Statement).
ITEM 9. UNDERTAKINGS.
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 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.
b) 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.
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.
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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.
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.
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<PAGE>
SIGNATURES
The Registrant. 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 Boston, County of Suffolk, Commonwealth of
Massachusetts, on October 31, 1995.
MGI PROPERTIES
By: /s/ W. Pearce Coues
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W. Pearce Coues
Chairman of the Board of
Trustees and Chief Executive
Officer
POWER OF ATTORNEYS AND SIGNATORIES
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each of the undersigned officers and
Trustees of MGI Properties hereby constitutes and appoints W. Pearce Coues,
Robert Ware and Phillip C. Vitali and each of them singly, as true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him in his name in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission and to prepare any and
all exhibits thereto, and other documents in connection therewith, and to make
any applicable state securities law or blue sky filings, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite or necessary to be done to enable MGI
Properties to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements of the Securities and Exchange Commission, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signatures Capacity Date
<S> <C> <C>
/s/ W. Pearce Coues Chairman of the Board of October 31, 1995
- -------------------------- Trustees and Chief
W. Pearce Coues Executive Officer
(Principal Executive
Officer)
/s/ Phillip C. Vitali Executive Vice President October 31, 1995
- -------------------------- and Treasurer (Principal
Phillip C. Vitali Financial Officer)
/s/ David P. Morency Controller (Principal October 31, 1995
- -------------------------- Accounting Officer)
David P. Morency
/s/ George S. Bissell Trustee October 31, 1995
- --------------------------
George S. Bissell
/s/ Herbert D. Conant Trustee October 31, 1995
- --------------------------
Herbert D. Conant
/s/ Francis P. Gunning Trustee October 31, 1995
- --------------------------
Francis P. Gunning
/s/ Colin C. Hampton Trustee October 31, 1995
- --------------------------
Colin C. Hampton
/s/ George M. Lovejoy, Jr. Trustee October 31, 1995
- --------------------------
George M. Lovejoy, Jr.
/s/ Rodger P. Nordblom Trustee October 31, 1995
- --------------------------
Rodger P. Nordblom
</TABLE>
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EXHIBIT 5
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
505 Park Avenue
New York, New York 10022
October 31, 1995
MGI Properties
30 Rowes Wharf
Boston, Massachusetts 02110
Re: MGI Properties (the "Trust")
Ladies and Gentlemen:
You have requested our opinion in connection with the
registration statement on Form S-8 (the "Registration Statement") being filed by
you with the Securities and Exchange Commission for the purpose of registering
under the Securities Act of 1933, as amended (the "Act"), 22,880 of the Trust's
common shares, par value $1.00 per share (the "Shares"), representing the sum of
(i) 500 Shares awarded to a former employee of the Trust, (ii) 10,380 Shares
awarded to certain present employees of the Trust and (iii) 12,000 Shares that
may be acquired pursuant to options to purchase Shares granted to advisors of
the Trust.
We advise you that we have examined originals or copies
certified or otherwise identified to our satisfaction of the Declaration of
Trust and By-laws of the Trust and the amendments to the foregoing, minutes of
meetings of the Board of Trustees and shareholders of the Trust, the
Registration Statement and such other documents, instruments and certificates of
officers and representatives of the Trust and public officials and we have made
such examination of law as we have deemed appropriate as the basis for the
opinion hereinafter expressed. In making such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies.
Based on the foregoing, we are of the opinion that (i) the
aggregate of 10,880 Shares awarded to a former employee and present employees of
the Trust have been duly and validly issued, and are fully paid and
non-assessable and (ii) the 12,000 Shares issuable upon the exercise of options
granted to advisors of the Trust, when issued and paid for in accordance with
the terms and conditions set forth in the option agreements relating to such
grants, will be duly and validly issued, fully paid and non-assessable.
70186.2
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We advise you that certain members of the firm own an
aggregate of 8,630 Shares and hold options to purchase an aggregate of 33,400
Shares.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
OLSHAN GRUNDMAN FROME & ROSENZWEIG LLP
70186.2
EXHIBIT 23.2
Consent of Independent Auditors
The Board of Trustees
MGI Properties:
We consent to incorporation by reference in the registration
statement on Form S-8 of MGI Properties of our report dated December 30, 1994,
relating to the consolidated balance sheets of MGI Properties and subsidiaries
as of November 30, 1994 and 1993, and the related consolidated statements of
earnings, changes in shareholders' equity, and cash flows for each of the years
in the three-year period ended November 30, 1994, and all related schedules,
which report appears in the November 30, 1994 annual report on Form 10-K of MGI
Properties.
KPMG Peat Marwick LLP
Boston, Massachusetts
October 31, 1995
