As filed with the Securities and Exchange Commission
on April 3, 1998
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
--------------------
Form S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------
BANYAN STRATEGIC REALTY TRUST
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Massachusetts 36-3375345
(State or other jurisdiction of (I.R.S. Employee
Incorporation or organization) Identification No.)
150 South Wacker Drive
Chicago, Illinois 60606
(312) 553-9800
(Address including zip code, and telephone number, including area code,
of registrant's principal executive offices)
BANYAN STRATEGIC REALTY TRUST
1997 OMNIBUS STOCK AND INCENTIVE PLAN
(Full Title of Plan)
LEONARD G. LEVINE
BANYAN STRATEGIC REALTY TRUST
150 South Wacker Drive
Chicago, Illinois 60606
(312) 553-9800
(Name and address, including zip code, and telephone number,
including area code, of agents for service)
--------------------
With a Copy to:
MICHAEL J. CHOATE, ESQ.
SHEFSKY & FROELICH LTD.
444 North Michigan Avenue, Suite 2500
Chicago, Illinois 60611
(312) 527-4000
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement has
become effective.
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
PROPOSED
TITLE OF EACH CLASS PROPOSED MAXIMUM MAXIMUM
OF SECURITIES TO AMOUNT TO OFFERING PRICE AGGREGATE OFFERING REGISTRATION
BE REGISTERED BE REGISTERED PER SHARE PRICE (2) FEE (2)(3)
- ------------------ ------------- --------------- ------------------ ------------
<S> <C> <C> <C> <C>
Shares of Beneficial
Interest, no par
value (1)(2) 1,000,000 $5.94 $5,940,000 $1752.30
TOTAL 1,000,000 $5.94 $5,940,000 $1752.30
- --------------------
<FN>
(1) Represents shares of beneficial interest which are issuable pursuant to the exercise of options granted under
the Company's 1997 Omnibus Stock and Incentive Plan.
(2) The Registration Statement also relates to an additional indeterminate number of shares of beneficial
interest of the Company as may be issued upon the antidilution provisions contained in the Company's 1997 Omnibus
Stock and Incentive Plan.
(3) Pursuant to Rule 457(c), the fee is calculated on the basis of the average of the bid and ask prices on
April 1, 1998 on the Nasdaq National Market for Shares of beneficial interest.
</TABLE>
<PAGE>
TABLE OF CONTENTS
Page
----
I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information . . . . . . . . . . . . . . . . 1
Item 2. Registrant Information and
Employee Annual Information. . . . . . . . . . . 1
II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference. . . . . 1
Item 4. Description of Securities. . . . . . . . . . . . 2
Item 5. Interest of Name Experts and Counsel . . . . . . 2
Item 6. Indemnification of Directors and Officers. . . . 2
Item 7. Exemption from Registration Claimed. . . . . . . 3
Item 8. Exhibits . . . . . . . . . . . . . . . . . . . . 3
Item 9. Undertakings . . . . . . . . . . . . . . . . . . 3
i
<PAGE>
PART I
Item 1. Plan Information
Information required by Part I of Form S-8 to be contained in a
Section 10(a) Prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act of 1933 (the "Securities
Act").
Item 2. Registrant Information and Employee Annual Information
The documents set forth in Item 3 of Part II of this Registration
Statement are incorporated by reference in the Section 10(a) Prospectus and
along with copies of the Banyan Strategic Realty Trust 1997 Omnibus Stock
and Incentive Plan (the "Plan") and are available without charge, upon
written or oral request from the Registrant. Requests should be directed
to Robert G. Higgins, Vice President, Secretary and General Counsel, 150
South Wacker Drive, Chicago, Illinois 60606, (312-553-9800).
PART II
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission by the Registrant are hereby incorporated by reference in this
Registration Statement and made a part thereof as of their respective
filing dates:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997.
2. The Registrant's 1997 Omnibus Stock and Incentive Plan which is
included as Annex C to the Registrant's definitive Proxy Statement filed
June 10, 1997 with respect to the Annual Meeting held July 8, 1997.
3. The description of the Registrant's Shares of Beneficial
Interest which is contained in the Registrant's Registration Statement on
Form 8-A dated September 22, 1987 filed with the Securities and Exchange
Commission pursuant to Section 12(g) of the Securities Exchange Act of
1934, including any amendments or reports filed for the purpose of updating
the description.
4. 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,
prior to the filing of a post-effective amendment to the Registration
Statement which indicates that all of the shares of beneficial interest
offered have been sold or which deregisters all of the shares then
remaining unsold, shall be deemed to be incorporated by reference in the
Registration Statement and to be a part hereof from the date of filing of
those documents.
Any statement contained 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 this 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.
1
<PAGE>
Item 4. Description of Securities
Not Applicable
Item 5. Interest of Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Directors and Officers
Article VIII, Section 8.4 of the Registrant's Declaration of Trust
requires the Registrant 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, his testator or
intestate was or is a Trustee, Advisor, officer, employee or other agent
acting on behalf of the Registrant against any losses, judgments,
liabilities, expenses and amounts paid in settlement of any claims
sustained by them in connection with the Registrant, provided that: (i)
the person has determined, in good faith, that the course of conduct which
caused the loss or liability was in the best interest of the Registrant;
(ii) the liability or loss was not the result of the person's negligence or
misconduct; and (iii) the indemnification or agreement to hold harmless is
recoverable only out of the assets of the Registrant and not from the
shareholders. Indemnification will not be allowed for any liability
imposed by judgment, and costs associated therewith, including attorneys'
fees, arising from or out of a violation of state or federal securities
laws; provided, however, that indemnification for losses, liabilities,
settlements and related expenses of lawsuits alleging securities law
violations may be permitted if: (a) a court approves the settlement and
finds that indemnification of the settlement and related costs should be
made; or (b) there has been a dismissal with prejudice or a successful
adjudication on the merits of each count involving alleged securities law
violations as to the particular indemnitee. Any person seeking
indemnification must apprise the court of the position of the Securities
and Exchange Commission (the "Commission") and the Massachusetts Securities
Division with respect to indemnification for securities law violations,
before seeking court approval for indemnification. The Registrant may not
advance funds to any person for legal expenses and other costs incurred as
a result of any legal action initiated against such person by a shareholder
of the Registrant. The Registrant may advance funds to a person for legal
expenses and other costs incurred as the result of a legal action if the
following three conditions are satisfied: (i) the legal action relates to
the performance of duties or services by such person on behalf of the
Registrant; (ii) the legal action is initiated by a third party who is not
a shareholder of the Registrant; and (iii) such person agrees in writing to
repay the advanced funds to the Registrant if it is ultimately determined
that he is not entitled to indemnification by the Registrant as authorized
herein. The rights accruing to any person under these provisions shall not
exclude any other right to which he may be lawfully entitled, nor shall
anything contained herein restrict such right of a Trustee to contribution
as may be available under applicable law. The Registrant has the power to
purchase and maintain liability insurance on behalf of any person entitled
to indemnity hereunder, including the Trustees, but the Registrant may not
incur the cost of that portion of liability insurance which insures any
party against any liability for which he could not be indemnified under the
Registrant's Declaration of Trust.
2
<PAGE>
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended and the rules and regulations thereunder
(the "Act") may be permitted for trustees, officers and controlling
persons of the Registrant pursuant to the foregoing, or otherwise, the
Registrant has been advised that in the opinion of the 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 trustee, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such trustee, 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 is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
Item 7. Exemption from Registration Claimed
Not Applicable
Item 8. Exhibits
The Exhibits to this Registration Statement are listed in the Exhibit
Index on Page 7 of this Registration Statement, which Index is incorporated
herein by reference. The Registrant hereby undertakes to submit the Plan
and any amendments thereto to the Internal Revenue Service (the "IRS") in a
timely manner and will make all changes required by the IRS in order to
qualify the Plan.
Item 9. 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, as amended; (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; and (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 the securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(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.
3
<PAGE>
(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 Section
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 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.
(c) 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.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Chicago, State of
Illinois on the 3rd day of April, 1998.
BANYAN STRATEGIC REALTY TRUST
By: /s/ Leonard G. Levine
------------------------------
Leonard G. Levine
President
POWER OF ATTORNEY
We, the undersigned, do hereby severally constitute and appoint
Leonard G. Levine and Robert G. Higgins, and each or either of them, our
true and lawful attorneys and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments or post-effective amendments to
this Registration Statement (including post-effective amendments) and to
file the same with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys and agents, and each or either of them, 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, hereby ratifying and confirming all that said attorneys
and agents, and each of them, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ Leonard G. Levine President April 3, 1998
Leonard G. Levine (Principal Executive
Officer)
/s/ Joel L. Teglia Vice President and April 3, 1998
Joel L. Teglia Chief Financial
Officer
/s/ Walter E. Auch, Sr. Trustee April 3, 1998
Walter E. Auch, Sr.
/s/ Norman M. Gold Trustee April 3, 1998
Norman M. Gold
/s/ Marvin A. Sotoloff Trustee April 3, 1998
Marvin A. Sotoloff
5
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
No. Description of Exhibit
- ------- ----------------------
4.1 Banyan Strategic Realty Trust 1997 Omnibus Stock and Incentive
Plan (incorporated by reference to Annex C to the Registrant's
definitive Proxy Statement filed June 10, 1997 with respect to
the Annual Meeting held July 8, 1997)
4.2 Amendment to Banyan Strategic Realty Trust 1997 Omnibus Stock
and Incentive Plan
5 Opinion of Peabody & Brown
23.1 Consent of Ernst & Young LLP
23.2 Consent of Peabody & Brown (included in the opinion filed as
Exhibit 5 to this Registration Statement)
24 Power of Attorney (included on the signature page for this
Registration Statement)
EXHIBIT 4.2
- -----------
AMENDMENT TO BANYAN STRATEGIC REALTY TRUST
1997 OMNIBUS STOCK AND INCENTIVE PLAN
This Amendment to the Banyan Strategic Realty Trust 1997 Omnibus
Stock and Incentive Plan (the "Amendment") is made and entered into as of
this 17th day of July, 1997.
WHEREAS, management of the Trust has recommended, and the
Board of Trustees is desirous of, adopting the recommendations and amending
certain aspects of the Plan.
NOW THEREFORE, the Plan is hereby amended in the following:
1. Section IV(a)(i) shall be amended by deleting the first paragraph
thereof in its entirety and substituting in its entirety the following:
(a)(i) GRANT/EXERCISE. The Board may grant Options to
Participants in number and on terms determined by the Board; provided,
however, that each Person serving as an "Independent Trustee" on the tenth
business day after final adjournment of the Company's annual meeting
convened on July 8, 1997 shall receive an Option to acquire 2,000 Shares,
and provided further that each Person serving as an Independent Trustee ten
business days after the final adjournment of each succeeding annual meeting
will be granted an Option to purchase 2,000 Shares. Notwithstanding
anything to the contrary contained in this Plan, the Board may not increase
the number of Shares underlying options which may be granted to Independent
Trustees hereunder without the Approval of the Trust's holders of
beneficial interest.
2. Section V shall be amended by deleting Clause (a) in its entirety and
substituting in its entirety the following:
(a) NUMBER OF SHARES
The stock subject to the Awards granted under this Plan will be
the Company's shares of beneficial interest, no par value, and any other
stock or security resulting from the adjustment thereof or substitution
therefore. There shall be one million (1,000,000) Shares reserved and
available for Awards granted hereunder. The Shares issued upon exercise of
an Award may be authorized and unissued Shares, or Shares issued and
reacquired by the Company. In no event may the number of Shares reserved
and available for issuance hereunder be increased except with the Approval
of the Trust's holders of beneficial interest.
3. Section VI shall be amended by deleting Clause (b) in its entirety
and substituting in its entirety the following:
(b) EXERCISE OF AWARDS
Except for Stock Options awarded to the Independent Trustees,
Awards granted hereunder will generally vest and be exercisable in
installments as follows: (i) to the extent of 33.3% of the number of
Shares commencing on the first anniversary of the date of grant; (ii) to
the extent of an additional 33.3% of Shares commencing on the second
anniversary of the date of grant; and (iii) to the extent of an additional
33.4% of Shares commencing on the third anniversary of the date of grant;
provided that the Board may accelerate vesting in
<PAGE>
the event of a Participant's death, permanent disability or
retirement in accordance with the Company's retirement policy or where
acceleration of vesting is, in the Board's judgment, in the Company's best
interest provided further that no Award will vest if, to do so, would
create a situation which would result in an "excess parachute payment"
within the meaning of Section 280G of the Code. Stock Options granted to
the Independent Trustees hereunder will vest and be exercisable in
installments as follows: (i) to the extent of 50.0% of the number of Shares
commencing on the first anniversary of the date of grant; and (ii) to the
extent of 50.0% of the number of Shares commencing on the second
anniversary of the date of grant. If the Participant does not, in any
given period, purchase all of the Shares subject to the Award, the
Participant's right to purchase any Shares not purchased in the period will
continue until the expiration or sooner termination of the Award, except to
the extent provided otherwise in the Plan Agreement. Except as otherwise
provided herein or in a Plan Agreement, as a condition to the grant of an
award to any Employee, the Participant must remain in the continuous employ
of the Company or its subsidiaries for the period of time specified by the
Board and the Plan Agreement. To exercise an Award, the Participant must
give written notice to the Company's Vice President General Counsel at the
Company's office at Suite 2900, 150 South Wacker Drive, Chicago, Illinois
60606 (or the office which is the successor main office or which is
otherwise designated as the office to which notice is to be given) of the
number of Shares to be acquired and make any arrangements with the Vice
President General Counsel as are acceptable to the Vice President General
Counsel to satisfy the Participant's federal, state and local tax
withholding obligations and satisfy the Participant's obligation under the
Plan and the Plan Agreement. Nothing herein shall prevent the Board from
imposing vesting requirements in connection with any specific Award which
are more restrictive than those generally set forth herein; provided,
however, that the Board may not make changes to the vesting requirements
described herein which are generally more favorable than those set forth
herein without the Approval of the Trust's holders of beneficial interest.
4. Section VII(b) shall be amended by adding the following:
(viii) Repricing. Notwithstanding anything to the contrary
contained herein in this Section VII, the Board may not reprice or
otherwise exchange any of the Awards outstanding under the Plan unless the
repricing or exchange is: (a) authorized by a committee composed entirely
of Independent Trustees to fulfill a legitimate Trust purpose; (b) utilized
only to maintain option value due to extreme circumstances beyond
management's control; and (c) limited to no more than 10% of the Shares
authorized for grant under the Plan.
Further, except as provided in this Section VII, the Board shall not
have the power to waive any conditions precedent to the exercise of Awards
except with the Approval of the Trust's holders of beneficial interest.
5. Section VII shall be amended by deleting Clause (i) in its entirety
and substituting in its entirety the following:
(i) AMENDMENT, MODIFICATION AND TERMINATION
Subject to the terms of the Plan, and except as specifically
provided herein, the Board may alter, amend, suspend or terminate the Plan
in whole or in part provided that the Board may not amend the definition of
"Participant" as set forth in Section VIII(w) hereof or this Section VII(i)
without Approval of the Trust's holders of beneficial interest. Except as
set forth in Section VII(b), the Board may make adjustments in the terms
and conditions of, and the criteria included in, Awards in recognition of
unusual or non-recurring events affecting the Company or the financial
statements of
<PAGE>
the Company or of changes in applicable laws, regulations or
accounting principles, whenever the Board determines that such adjustments
are appropriate in order to prevent dilution or enlargement of the benefits
or potential benefits intended to be made available under the Plan;
provided that no such adjustment may be authorized to the extent that an
adjustment would be inconsistent with the requirements of Section 162(m) of
the Code, as from time to time amended. No termination, amendment or
modification of the Plan shall adversely affect in any material way any
Award previously granted under the Plan, without the written consent of the
Participant holding the Award. For purposes of this Plan, "Approval" shall
mean the affirmative vote of a majority of the Trust's holders of shares of
beneficial interest present in person or by proxy and eligible to vote at
any annual or special meeting of the Trust's holders of beneficial interest
called for the purpose of, among other things, seeking Approval.
IN WITNESS HEREOF, this Amendment is adopted and executed on the day
and year first written above.
Board of Trustees
BANYAN STRATEGIC REALTY TRUST
/s/ Walter E. Auch, Sr.
------------------------------
Walter E. Auch, Sr.
/s/ Norman M. Gold
------------------------------
Norman M. Gold
/s/ Marvin A. Sotoloff
------------------------------
Marvin A. Sotoloff
EXHIBIT 5
- ---------
OPINION OF PEABODY & BROWN
[LETTERHEAD OF PEABODY & BROWN]
April 3, 1998
Banyan Strategic Realty Trust
150 South Wacker Drive
Chicago, Illinois 60606
Re: Banyan Strategic Realty Trust
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Banyan Strategic Realty Trust, a
Massachusetts business trust (the "Trust"), in connection with the Shares
to be issued by the Trust upon the exercise of options granted by the Trust
under the Trust's 1997 Omnibus Stock and Incentive Plan, as amended to date
(the "Plan").
For purposes of this opinion, we have examined the originals or
copies certified or otherwise identified to our satisfaction of: (i) the
Trust's Declaration of Trust, as amended to date; (ii) records of the
proceedings of the Trust as we deemed necessary or appropriate as a basis
for the opinions set forth herein; and (iii) those matters of law as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein. In rendering our opinion, we have assumed without inquiry the
legal capacity of all natural persons, the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as
certified or photostatic copies and the authenticity of the originals of
these documents submitted to us as copies.
We are admitted to the practice of law only in the Commonwealth of
Massachusetts and, accordingly, we do not purport to be experts on the laws
of any other jurisdiction nor do we express an opinion as to the laws of
jurisdictions other than the laws of the Commonwealth of Massachusetts.
On the basis of, and in reliance upon, the foregoing, and subject to
the qualifications contained herein, we are of the opinion that the Shares,
when issued in accordance with the Plan for the consideration set forth
therein, will be validly issued, fully-paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement, including the Prospectus
constituting a part thereof, and any amendment thereto.
Respectfully submitted,
/s/ Peabody & Brown
PEABODY & BROWN
EXHIBIT 23.1
- ------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) for the registration of 1,000,000 shares of beneficial interest
pertaining to the Banyan Strategic Realty Trust 1997 Omnibus Stock and
Incentive Plan of our report dated February 9, 1998 with respect to the
consolidated financial statements of Banyan Strategic Realty Trust included
in its Annual Report (Form 10-K) for the year ended December 31, 1997,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
April 1, 1998
