SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K405/A
AMENDMENT NO. 1
Filed pursuant to Section 12, 13, or 15(d) of the
Securities Exchange Act of 1934
For the fiscal year ended
December 31, 1998 Commission File Number 0-15465
Banyan Strategic Realty Trust
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Massachusetts 36-3375345
----------------------- ------------------------------------
(State of organization) (I.R.S. Employer Identification No.)
150 South Wacker Drive, Chicago, IL 60606
---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code (312) 553-9800
The undersigned registrant hereby amends the following sections of its
Report for the year ended December 31, 1998 on Form 10-K405 as set forth in
the pages attached hereto:
PART III
Item 10. Trustees and Executive Officers of the Registrant.
Page 68.
Item 11. Executive Compensation. Page 68.
Item 12. Security Ownership of Certain Beneficial Owners and
Management. Page 68.
Item 13. Certain Relationships and Related Transactions.
Page 68.
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
BANYAN STRATEGIC REALTY TRUST
By: /s/ Leonard G. Levine
Leonard G. Levine
President and Trustee
Dated: April 29, 1999
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
There have been no changes in, or disagreements with, the accountants
on any matter of accounting principles, practices or financial statement
disclosure.
PART III
ITEM 10. OUR TRUSTEES AND EXECUTIVE OFFICERS
The trustees and executive officers of the Trust are as follows:
Walter E. Auch, Sr. Trustee
Norman M. Gold Trustee
Marvin A. Sotoloff Trustee
Leonard G. Levine President and Trustee
Neil D. Hansen First Vice President
Robert G. Higgins Vice President and Secretary/
General Counsel
Joel L. Teglia Vice President/Chief Financial Officer
Jay E. Schmidt Vice President/Investments
WALTER E. AUCH, SR. Mr. Auch, age 77, has served as an independent
trustee since 1986. Mr. Auch served as the chairman and chief executive
officer of the Chicago Board of Options Exchange from 1979 to 1986. Prior
to that time, Mr. Auch was executive vice president, director and a member
of the executive committee of PaineWebber. Mr. Auch is a director of Pimco
Advisors L.P., Geotek Communications, Inc., Smith Barney Concert Series
Funds, Smith Barney Trak Fund, The Crimson Partners Funds and the Nicholas
Applegate Funds and a trustee of Hillsdale College and the Arizona Heart
Institute. Mr. Auch is also a director of Semele Group, Inc. and Legend
Properties, Inc.
NORMAN M. GOLD. Mr. Gold, age 68, has served as an independent
trustee since 1986. Mr. Gold is a partner in the law firm of Altheimer &
Gray and has practiced law for over forty years, concentrating in tax,
corporate and real estate law. Mr. Gold is also a trustee of New Plan
Excel Realty Trust. He is a certified public accountant and a member of
the Chicago and American Bar Associations.
MARVIN A. SOTOLOFF. Mr. Sotoloff, age 55, has served as an
independent trustee since 1986. Mr. Sotoloff has served as the executive
managing director of Julien J. Studley, Inc., an international corporate
real estate advisory firm, since 1998. Prior to joining Julien J. Studley,
Mr. Sotoloff was chief executive officer and chairman of the board of
Equity Resources, Inc., a firm that specialized in commercial real estate
brokerage and developing and managing commercial real estate. Prior to
joining Equity Resources, Mr. Sotoloff was regional vice president of
Premisys Real Estate Services, Inc., a subsidiary of the Prudential Realty
Group. A licensed real estate broker, Mr. Sotoloff is a past president of
the Chicago Office Leasing Brokers Association and is a licensed attorney
and a member of the Illinois and Pennsylvania Bar Associations.
LEONARD G. LEVINE. Mr. Levine, age 52, has been our president since
1990 and a trustee since 1998. Mr. Levine also served as a trustee from
September, 1986 until February 1990. Mr. Levine received a bachelors of
science/bachelors of arts degree in accounting from Roosevelt University
and a masters degree in taxation from DePaul University. Mr. Levine
previously served as president of Legend Properties, Inc. (f/k/a Banyan
Mortgage Investment Fund), Banyan Short Term Income Trust and Semele Group,
Inc. (f/k/a Banyan Strategic Land Fund II) (collectively, the "Banyan
Funds") and BSRT Management Corp. Mr. Levine is a certified public
accountant and a licensed real estate broker. Mr. Levine is the father of
Adam Levine, one of our employees.
68 (a)
<PAGE>
NEIL D. HANSEN. Mr. Hansen, age 52, has been our first vice
president since 1991 and oversees our asset management group. Mr. Hansen
received a B.S. degree in finance from the University of Illinois and a
master of management degree from Northwestern University. Mr. Hansen
previously served as First Vice President of each of the Banyan Funds and
BSRT Management Corp. Mr. Hansen is a certified public accountant.
ROBERT G. HIGGINS. Mr. Higgins, age 47, has served as our vice
president and general counsel since 1992 and as secretary since 1995. Mr.
Higgins received a B.A. degree in government from the University of Notre
Dame and a J.D. degree from Loyola University of Chicago. Mr. Higgins
concentrates his practice in the areas of real estate development, finance,
acquisition, land use, sales, lending and general corporate business
practice. Mr. Higgins previously served as vice president, general counsel
and secretary of each of the Banyan Funds and BSRT Management Corp. Mr.
Higgins is admitted to the bar in the States of Illinois, Minnesota and
Texas. Mr. Higgins practices law as a sole practitioner.
JOEL L. TEGLIA. Mr. Teglia, age 37, has served as our vice president
and chief financial officer since 1994. Prior to his appointment, Mr.
Teglia provided various services to us in his capacity as controller for
BSRT Management Corp. (f/k/a Banyan Management Corp.), a position that he
held from 1991 to 1994. He received a B.A. degree in accounting from the
University of Notre Dame. Mr. Teglia previously served as vice president
and chief financial officer of each of the Banyan Funds and BSRT Management
Corp. Mr. Teglia is a certified public accountant.
JAY E. SCHMIDT. Mr. Schmidt, age 48, has served as our vice
president of investments since 1995. From 1992 to 1995, he served as vice
president of investments for BSRT Management Corp. Mr. Schmidt received a
B.A. degree from Franklin and Marshall College and a J.D. degree from the
University of Wisconsin. He is a licensed real estate broker and an
attorney admitted to the bar in the State of Wisconsin.
ITEM 11. EXECUTIVE COMPENSATION
A. INDEPENDENT TRUSTEE COMPENSATION
Each independent trustee is paid an annual fee of $20,000, payable
quarterly, plus $1,000 for each board meeting, including meetings of board
committees, attended in person and $500 an hour for each Board meeting,
including committee meetings held by telephonic conference call. Each
independent trustee is also reimbursed for out-of-pocket expenses incurred
in attending board meetings. We also award each person serving as an
independent trustee an option to purchase 2,000 of our common shares ten
days after each annual meeting. All options granted to the independent
trustees vest and become exercisable in the following installments: (1) 50%
on the first anniversary of the grant; and (2) 50% on the second
anniversary of the grant.
B. EXECUTIVE COMPENSATION
This table shows compensation paid to our chief executive officer and
our next three most highly compensated executive officers during the last
three years.
68 (b)
<PAGE>
<TABLE>
<CAPTION> Long-Term Compensation
------------------------------------
Annual Compensation Awards Payouts
------------------------------- ------------------------ ---------
(a) (b) (c) (d) (e) (f) (g) (h) (i)
Securities
Other Under- All
Annual Restricted lying Other
Salary Compen- Stock Options/ LTIP Compen-
Name Year (2) Bonus sation Award(s) SARS(#) Payouts sation
- ---- ---- ------ ----- ------- ---------- ---------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Leonard G. Levine,
President and
Chief Executive
Officer 1998 $206,100 $146,382
1997 $195,540 $2,319,292
1996 $189,247 $7,700 $66,985
Jay E. Schmidt
Vice President-
Investments 1998 $170,307 $41,908
1997 $165,281 $35,000
1996 $154,615 $35,000
Neil D. Hansen
First Vice President 1998 $205,860 $48,990
1997 $192,546 $20,000
1996
Joel L. Teglia
Vice President and
Chief Financial
Officer 1998 $126,825 $30,755
1997 $95,160 $10,000
1996
<FN>
(1) As of the fiscal year ended December 31, 1998, Mr. Levine owned 512,504 shares of beneficial interest which
he is restricted from transferring except in compliance with the registration requirements of federal and state
securities law. The value of these shares as of December 31,1998, without any discount for the transfer
restrictions was $2,882,835.
(2) Includes the lesser of 3% of base compensation or $4,800 which was contributed by us to each employee's
401(k) plan.
</TABLE>
68 (c)
<PAGE>
EMPLOYMENT AGREEMENTS.
MR. LEVINE. We have entered into an employment agreement with Mr.
Levine, our president and chief executive officer. This contract has a
term expiring on December 31, 2001. The agreement, was signed on March 11,
1998, but became retroactively effective as of October 1, 1997. Under the
agreement, we pay Mr. Levine a base salary equal to $200,000 per year
through December 31, 1999 increasing to $210,000 per year during the last
two years of the agreement. In addition, Mr. Levine may earn incentive
compensation during each year of the agreement equal to 62.5% of the base
salary for that year, subject to us achieving certain predetermined levels
of "funds from operations" increased by .03 for each one percentage point
that our actual per share "funds from operations" exceed the target and
decreased (but not below zero) by .04 for each one percentage point our
actual per share "funds from operations" is below the target amount. The
first period for which this incentive compensation was earned was the
fifteen months from October 1, 1997 through December 31, 1998. For the
fifteen months ended December 31,1998, this target was $0.95 per share.
Our actual "funds from operations" for this period was $0.935 per share.
For this first period, the base salary used in calculating the bonus was
$250,000 comprised of $50,000 for the last three months of 1997 and
$200,000 for 1998. Thus, Mr. Levine earned incentive compensation equal to
$146,382 for the fifteen months ended December 31,1998. We have also
granted Mr. Levine non-qualified stock options to purchase an aggregate of
350,000 shares of our common shares of beneficial interest at an exercise
price equal to $5.50 per share.
Options to purchase 100,000 of these shares vested and became
exercisable when we signed the agreement with Mr. Levine. Options to
purchase an additional 100,000 shares will vest and become exercisable in
25,000 share increments at the end of each calendar year of the agreement
with the first increment of 25,000 shares having vested and become
exercisable on December 31, 1998 and the second increment will vest and
become exercisable on December 31,1999. Options to purchase an additional
50,000 shares will vest and become exercisable if, during any consecutive
thirty (30) trading days during the term of the agreement, the closing
price of our common shares averages at least $8.50 per share. Options to
purchase an additional 100,000 shares will vest and become exercisable on a
proportionate basis if, during any thirty (30) consecutive trading days
during the term of the agreement, the closing price of the our shares
averages more than $8.50 per share with full vesting occurring with respect
to 75,000 shares if the closing price averages $9.00 per share, and $10.00
per share with respect to the other 25,000 shares. As of December 31,1998,
none of the options subject to the performance of our share price has
vested.
The number of shares underlying the options and the exercise price of
each option are subject to adjustment from time to time if we: (i) issue or
sell additional common shares in exchange for consideration at a price less
than the prevailing market price of our shares; (ii) issue or sell warrants
with exercise prices less than the prevailing market price; (iii) declare a
dividend or otherwise make a distribution to our shareholders in the form
of additional common shares; (iv) subdivide our outstanding common shares
into a larger number of common shares; or (v) combine our outstanding
common shares into a smaller number of common shares. Mr. Levine must
exercise the options by October 1, 2007, except that if he dies or becomes
permanently disabled during the term of the agreement, then all options
which have vested must be exercised within one year of death or permanent
disability. Upon Mr. Levine's death or permanent disability, all options
not yet vested, but which would vest within six months either by passage of
time or satisfaction of the various performance standards, will be deemed
vested and become exercisable within the same one-year time period.
68 (d)
<PAGE>
The agreement also requires us to provide Mr. Levine with both life
and disability insurance benefits during the term of the agreement, as well
as all non-wage benefits we provide to our other salaried employees. We
have the right to terminate Mr. Levine's employment within thirty (30)
calendar days after we file our annual report on Form 10-K with the
Securities and Exchange Commission for the preceding year if we do not
achieve certain earnings before interest, taxes, depreciation and
amortization, or EBITDA for short, targets for that year. For the fifteen
months ended December 31,1998, this earnings target was $1.54 per basic
common share. Our actual EBIDTA for this period was $1.94 per share. We
may also terminate Mr. Levine for "Just Cause." For purposes of the
agreement, "Just Cause" exists if Mr. Levine is convicted of, or has a
civil judgment rendered against him for theft or embezzlement of our
property, is convicted of a felony resulting in injury to our business
property or reputation, or if a civil judgment is rendered that Mr. Levine
breached his duty of loyalty to us or if an arbitrator determines that Mr.
Levine has refused to perform, or willfully failed to perform, his material
duties under the agreement or committed intentional acts that caused
material damage to our business or properties or performed his material
duties in a manner that constituted gross negligence. Mr. Levine has the
right to terminate the agreement upon ninety (90) days' notice to us for
any reason (the "Notice Termination"), or upon a "Change of Control" or
"Constructive Termination." For these purposes, a "Change of Control"
occurs if the members of our board as of October 1, 1997 fail to constitute
a majority of the members of the board, except for individuals consented to
by Mr. Levine, or if our shareholders adopt a plan of liquidation or take
other action having the effect of a plan of liquidation without the
recommendation and approval of our board. A "Constructive Termination"
occurs if Mr. Levine's authority is materially reduced or if there is a
material adverse change in his working conditions or we require him to
relocate from the Chicago metropolitan area. If Mr. Levine terminates the
agreement upon a "Change of Control" or is deemed to suffer a "Constructive
Termination," we will be obligated to pay Mr. Levine all amounts that could
have been paid under the agreement including all incentive compensation.
Additionally, all of the options that we granted to Mr. Levine when we
signed the agreement will become vested and immediately exercisable. If
Mr. Levine is not in our employ on January 1, 2002 pursuant to a written
employment agreement, and has not then died or become permanently disabled,
we are obligated to pay Mr. Levine $210,000, unless we had previously
terminated the agreement either due to our failing to achieve certain
performance standards or for "Just Cause" or if the agreement is terminated
by Mr. Levine by a "Notice Termination."
MESSRS. HANSEN, SCHMIDT AND TEGLIA. We have also entered into
employment agreements with each of Messrs. Hansen, Schmidt and Teglia.
These agreements were signed on March 4, 1999 but became effective as of
December 31, 1998. Pursuant to these agreements, we will pay Mr. Hansen an
annual base salary of $213,040; we will pay Mr. Schmidt an annual base
salary of $176,680; and we will pay Mr. Teglia an annual base salary of
$138,240. We may award each executive a bonus, or other compensation, but
are under no obligation to do so. Each executive is eligible for all non-
wage benefits we offer to our salaried employees and will be reimbursed for
reasonable business expenses. Additionally, pursuant to each agreement, we
will indemnify and hold harmless each executive from liabilities each may
incur as a result of performing his duties under their respective
employment agreements.
Each employment agreement expires on December 31, 1999 but is
automatically renewed for successive one-year periods unless either party
delivers at least ninety (90) days' written notice to the contrary. We have
the option of terminating each agreement if we undergo a "Change in
Control." We may also terminate each executive for "Just Cause." For
purposes of these agreements, these terms have the same meaning ascribed to
these terms under Mr. Levine's agreement. Each of Messrs. Hansen, Schmidt
and Teglia may terminate his respective employment agreement at any time by
giving us at least ninety (90) days' written notice.
68 (e)
<PAGE>
If we terminate an employment agreement for "Just Cause" or if any of
Messrs. Hansen, Schmidt or Teglia exercises his right to terminate the
agreement, we will have no further obligations under the terminated
agreement. If, however, we terminate an agreement other than for "Just
Cause" or the expiration of the term, we are required to pay the
terminated executive the salary he was due to earn during the remainder of
his term plus the salary he would have earned for the twelve months
following the expiration of the term. Additionally, we are required to
provide the terminated executive coverage, at our expense, under our group
health and life insurance policies for the same period. Further, if we
terminate an employment agreement due to a "Change in Control," we are
required to pay the terminated executive an amount equal to the executive's
incentive bonus (if any) for our most recently completed fiscal year. If
we do not renew an employment agreement, we are required to pay the
executive severance in an amount equal to one-half of the executive's
salary.
Stock Option Grants
This table shows options to purchase shares of beneficial interest we
granted during 1998 to our chief executive officer and our three most
highly compensated executive officers.
68 (f)
<PAGE>
<TABLE>
STOCK OPTION GRANTS IN 1998 FISCAL YEAR
---------------------------------------
<CAPTION>
Potential Realized
Value at Assumed
Annual Rates of Stock
Price Appreciations
for Option Term
-----------------------
(a) (b) (c) (d) (e) (f) (g)
Number of % of
Securities Total Options
Underlying Granted to
Options Employees in Exercise or
Name Granted Fiscal Year Base Price Expiration Date 5% 10%
- ---- ---------- ------------- ------------ --------------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Leonard G. Levine. . . . -- -- -- -- -- --
Jay E. Schmidt . . . . . 16,000 14% $5.375 Dec. 1, 2008 $54,085 $137,062
Neil D. Hansen . . . . . 16,000 14% $5.375 Dec. 1, 2008 $54,085 $137,062
Joel L. Teglia . . . . . 14,000 12% $5.375 Dec. 1, 2008 $47,324 $119,929
</TABLE>
<TABLE>
AGGREGATED OPTION EXERCISES AND FISCAL YEAR-END OPTION VALUE
------------------------------------------------------------
<CAPTION>
(a) (b) (c) (d) (e)
Number of
Securities Value of
Underlying Unexercised
Unexercised In-the-Money
Options/SARS at Options/SARs at
FY-End (#) FY-End ($)
Shares
Acquired on Value Exercisable/ Excisable/
Name Exercise Realized Unexercisable Unexercisable
- ---- ----------- --------- ------------- -------------
<S> <C> <C> <C> <C>
Leonard G. Levine -- -- -- --
Jay E. Schmidt 1,665 $4,444 6,667/ $0/
32,668 $9,153
Neil D. Hanson 1,665 $3,820 6,667/ $0/
32,668 $9,153
Joel L. Teglia 1,665 $3,820 5,000/ $0/
27,335 $8,653
</TABLE>
68 (g)
<PAGE>
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information as of April 29, 1999
regarding the number and percentage of our outstanding common shares
beneficially owned by: (i) each trustee; (ii) each executive officer; and
(iii) all trustees and executive officers as a group. The table also sets
forth information as of December 31, 1998 with respect to any person known
to us to be the beneficial owner of more than five percent of our
outstanding common shares. Information with respect to Morgens Waterfall
Income Partners, L.P., Magten Asset Management Corp. and FMR Corp. listed
in the table below, including the notes, is based solely on copies of
statements filed under Section 13(d) or 13(g) of the Exchange Act, and we
have not independently confirmed this information. Share amounts and
percentages shown for each person or entity are adjusted to give effect to
common shares that are not outstanding but may be acquired by a person or
entity upon exercise of all options exercisable by such entity or person
within sixty days of the date of the date hereof. However, those common
shares are not deemed to be outstanding for the purpose of computing the
percentage of outstanding common shares beneficially owned by any other
person.
Number of
Common Shares
Name and Address of Beneficially Percent
Beneficial Owner Owner of Class
- ------------------- ------------- ---------
Morgens Waterfall Income Partners, 2,192,501 16.4%
L.P. (1)
Restart Partners, L.P.
Restart Partners II, L.P.
Restart Partners III, L.P.
Restart Partners IV, L.P.
Restart Partners V, L.P.
Endowment Restart, L.L.C.
10 East 50th Street
New York, NY 10022
Magten Asset Management Corp. (2) 1,164,500 8.7%
Mellon Bank, N.A. as Trustee for
the General Motors Employees
Domestic Group Pension Trust
General Motors Investment
Management Corporation
350 East 21st Street
New York, New York 10010
FMR Corp. (3) 1,038,050 7.8%
Fidelity Management & Research
Company
Fidelity Low-Priced Stock Fund
Fidelity Management Trust Company
Edward C. Johnson 3d
Abigail P. Johnson
82 Devonshire St., Boston, MA 02109
Leonard G. Levine, 637,504 4.7%
President (4) (5)
Neil D. Hansen, 17,578 *
First Vice President (4)
Jay E. Schmidt, 5,981 *
Vice President (4)
Robert G. Higgins, 6,175 *
Vice President, General Counsel
and Secretary (4) (6)
68 (h)
<PAGE>
Number of
Common Shares
Name and Address of Beneficially Percent
Beneficial Owner Owner of Class
- ------------------- ------------- ---------
Joel L. Teglia, 3,609 *
Chief Financial Officer (4)
Walter E. Auch, Sr. 1,000 *
Norman M. Gold 1,000 *
Marvin A. Sotoloff 1,000 *
All Trustees and Executive 673,847 5.0%
Officers of the Trust,
as a group (eight persons) (5)
* less than 1%
(1) Does not include the conversion of a $7.4 million loan which is
outstanding and is convertible into shares of our convertible preferred
stock at a price of $100 per share, which may, in turn, be converted into
our common shares at a price of $5.15 per share. Certain affiliates of
Morgens Waterfall Income Partners, L.P. have filed reports with the SEC
pursuant to Section 13(d) of the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") indicating combined ownership of five percent
(5%) or more of the outstanding common shares. As of the date of this
prospectus: (i) Morgens Waterfall Income Partners, L.P. owns 83,315 common
shares; (ii) Restart Partners, L.P. owns 418,768 common shares; (iii)
Restart Partners II, L.P. owns 692,830 common shares; (iv) Restart Partners
III, L.P. owns 482,350 common shares; (v) Restart Partners IV, L.P. owns
304,758 common shares; (vi) Restart Partners V, L.P. owns 100,855 common
shares; (vii) Endowment Restart, L.L.C. owns 109,625 common shares.
Although John C. Waterfall and Edwin H. Morgens do not directly own any
common shares, each of them may be deemed an indirect beneficial owner of
2,192,501 common shares by virtue of their effective control over the
operation of each of the affiliated entities listed above. Furthermore,
Morgens Waterfall Capital, L.L.C. may be deemed an owner of 83,315 common
shares by virtue of its position as general partner of Morgens Waterfall
Income Partners, L.P.
(2) According to filings made with the SEC, Magten Asset Management Corp.
("Magten") is an investment advisor registered under the Investment
Advisors Act of 1940. Magten has filed reports with the SEC pursuant to
Section 13(d) of the Exchange Act, indicating ownership of five percent
(5%) or more of the outstanding common shares. Magten has shared
dispositive power over 1,897,605 common shares, and shared voting power
over 1,436,005 common shares. The General Motors Employees Domestic Group
Pension Trust (the "GM Trust") receives investment management services from
General Motors Investment Management Corporation (the "GM Advisor"), an
investment advisor registered under the Investment Advisors Act of 1940.
Magten provides investment management services to the GM Trust. The GM
Trust and the GM Advisor have shared voting and dispositive power over
651,055 common shares, or 4.9% of the outstanding common shares. Each of
the GM Trust and the GM Advisor disclaims beneficial ownership of these
common shares.
(3) FMR Corp., Edward C. Johnson 3d and Abigail P. Johnson (who together
with other members of the Johnson family may be deemed to form a
controlling group with respect to FMR Corp.) have filed reports with
68 (i)
<PAGE>
the SEC pursuant to Section 13(d) of the Exchange Act, indicating
combined ownership of five percent (5%) or more of the outstanding common
shares. As of the date of this prospectus, Fidelity Management & Research
Company, an investment advisor registered under the Investment Advisors Act
of 1940, and Fidelity Low-Priced Stock Fund, an investment company which
Fidelity Management & Research Company serves as investment advisor, owned
991,750 common shares or 7.47% of the outstanding common shares. Edward C.
Johnson 3d and FMR Corp. each has sole dispositive power over these 991,750
common shares, but neither has sole voting power over these common shares.
As of the date of this prospectus, Fidelity Management Trust Company, a
wholly-owned subsidiary of FMR Corp., owned 118,800 common shares or .9% of
the outstanding common shares as a result of serving as investment manager
of institutional accounts. Edward C. Johnson 3d and FMR Corp. each has
voting and dispositive power over these 118,800 common shares.
(4) The business address for each of Messrs. Hansen, Higgins, Levine,
Schmidt and Teglia is 150 S. Wacker Drive, Suite 2900, Chicago, Illinois
60606.
(5) Includes options to purchase 125,000 common shares.
(6) Includes 879 common shares owned by Mr. Higgins' daughter. Mr.
Higgins disclaims beneficial ownership of these common shares.
Based on Schedules 13D as filed with the Securities and Exchange
Commission, Morgens and Magten have decided to solicit the support of our
Trustees and management to identify and pursue strategic alternatives for
our company, including holding joint discussions with our Trustees and
management for this purpose. Morgens and Magten may hold discussions,
individually or jointly, with other of our shareholders as well. If
Morgens and Magten are not satisfied with the results of their discussions
with our management and Trustees, Morgens and Magten will consider what
further actions, if any, they will take. Such further actions could
include working together to propose and solicit proxies in favor of a slate
of candidates to stand for election at our upcoming 1999 Annual Meeting of
Shareholders in opposition to the slate nominated by our Trustees. These
candidates would promise to seek strategic alternatives for our company
(including a merger, stock or asset sale or liquidation) if elected.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
During the fiscal year ended December 31, 1998, we paid no salary to,
but purchased legal services from, Robert G. Higgins, our vice president,
secretary and general counsel, in the aggregate amount of $391,400. We
also provide Mr. Higgins with office space and equipment. Mr. Higgins does
not pay any rent for the use of office space and equipment. Instead, Mr.
Higgins provides us with a 20% discount for all time Mr. Higgins and his
employees bill to us. Mr. Higgins also reimburses us for the cost of two
full-time and certain part-time employees. For the fiscal year ended
December 31, 1998, Mr. Higgins reimbursed us for a total of $161,129. In
addition, during the fiscal year ended December 31, 1998, we paid Adam
Levine, the son of our president, chief executive officer and trustee,
Leonard G. Levine, $71,415 plus options, exercisable for ten years, to
purchase 6,000 shares at $5.375 per share for services rendered to us as an
employee. We also provided Adam Levine with benefits customarily provided
to our other employees.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) (1) Financial Statements of the Company are set forth in this
report in Item 8.
68 (j)
<PAGE>
(2) Financial Statement Schedule is set forth in this report
in Item 8.
(b) Report on Form 8-KA dated October 1, 1998 was filed to
provide the Financial Statements and related pro forma information required
by Item 7 of Form 8-K in connection with the Trust's acquisition of the
properties known as Technology Park and Johns Creek Office and Industrial
Park.
(c) Exhibits (see Exhibit Index included elsewhere herein).
(d) None.
68 (k)
