<PAGE> 1
As filed with the Securities and Exchange Commission on May 8, 1996
Registration No. 333-1569
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
EXCEL REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 33-0160389
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification Number)
-----------------------
16955 VIA DEL CAMPO, SUITE 110
SAN DIEGO, CALIFORNIA 92127
(619) 485-9400
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
-----------------------
Copies to:
RICHARD B. MUIR SCOTT N. WOLFE, ESQ.
EXECUTIVE VICE PRESIDENT AND SECRETARY LATHAM & WATKINS
16955 VIA DEL CAMPO, SUITE 110 701 "B" STREET, SUITE 2100
SAN DIEGO, CALIFORNIA 92127 SAN DIEGO, CALIFORNIA 92101
(619) 485-9400 (619) 236-1234
(Name, address, including zip code,
and telephone number, including area code,
of agent for service)
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.
---
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. X
---
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering.
---
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
---
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.
---
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Shares to be Aggregate Aggregate Registration
to be Registered Registered Price Per Unit(1) Offering Price(1) Fee(2)
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value.. 45,663 $19.25 $879,013 $304.00
===============================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the amount of the registration
fee pursuant to Rule 457, and based on a per share price of $19.25, the
average of the high and low prices of the Company's common stock as reported
on the New York Stock Exchange on March 5, 1996.
(2) Previously paid.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
Page 1 of 13
Exhibit Index on Page 12
<PAGE> 2
PROSPECTUS
EXCEL REALTY TRUST, INC.
45,663 Shares of Common Stock, Par Value $0.01 Per Share
This Prospectus relates to 45,663 shares of common stock, par value
$.01 per share (the "Common Stock"), of Excel Realty Trust, Inc., a Maryland
corporation (the "Company"), which may be offered from time to time by certain
stockholders of the Company (such holders being hereinafter described as the
"Selling Stockholders"). The shares of Common Stock to be registered hereunder
are hereinafter referred to as the "Securities." The Selling Stockholders
acquired the Securities between 1994 and 1996 in private placements of the
Company's Common Stock in connection with the acquisition by the Company of
certain properties from the Selling Stockholders.
All of the Securities are to be offered for the account of the Selling
Stockholders. The Selling Stockholders, directly or through agents, dealers or
underwriters, may offer and sell from time to time all or any part of the
Securities held by each of them in amounts and on terms to be determined or at
quoted prices then prevailing on the New York Stock Exchange. To the extent
required, the amounts of the Securities to be sold, purchase prices, public
offering prices, the names of any agents, dealers or underwriters, and any
applicable commissions or discounts with respect to a particular offer will be
set forth in an accompanying Prospectus Supplement or, if appropriate, a
post-effective amendment to the Registration Statement of which this Prospectus
is a part. The Selling Stockholders reserve the sole right to accept and,
together with any agent of the Selling Stockholders, to reject in whole or in
part any proposed purchase of the Securities. The Selling Stockholders will pay
any sales commissions or other seller's compensation applicable to such
transactions. The Selling Stockholders and agents who execute orders on their
behalf may be deemed to be underwriters as that term is defined in Section 2(11)
of the Securities Act of 1933, as amended (the "Securities Act"), and a portion
of any proceeds of sales and discounts, commissions or other seller's
compensation may be deemed to be underwriting compensation for purposes of the
Securities Act. Certain of the Selling Stockholders may pledge or otherwise
encumber shares covered by this Prospectus pursuant to agreements with lenders,
and to the extent such shares subsequently become the property of such lenders
pursuant to such agreements, such shares may be offered and sold from time to
time by such lenders in the manner set forth above. The Company has agreed to
indemnify certain of the Selling Stockholders and any underwriter (as defined in
the Securities Act) for such Selling Stockholders against certain liabilities,
including liabilities under the Securities Act.
The Company will not receive any of the proceeds from the sale of the
Securities.
The Company has agreed to pay all costs of the registration of the
Securities. Such costs, fees and disbursements are estimated to be approximately
$20,000.
The Common Stock to be registered hereunder is listed for trading on
the New York Stock Exchange under the symbol "XEL."
---------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
-------------------------------
The date of this Prospectus is _________, 1996.
1
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The Company's
Exchange Act file number is 1-12244. Reports, proxy statements and other
information filed by the Company in accordance with the Exchange Act can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7
World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained at prescribed rates from the public reference section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. In
addition, the Company's Common Stock is listed on the New York Stock Exchange
and similar information concerning the Company can be inspected and copied at
the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
The Company has filed with the Commission a Registration Statement on
Form S-3 (including all amendments thereto, the "Registration Statement"), with
respect to the Securities offered hereby. As permitted by the rules and
regulations of the Commission, this Prospectus does not contain all of the
information set forth in the Registration Statement and the exhibits and
schedules thereto. For further information about the Company and the Securities
offered hereby, reference is made to the Registration Statement and the exhibits
thereto, which may be examined without charge at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and copies of which may be obtained from the
Commission upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference and shall be deemed to be a part hereof:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1995, filed with the Commission on March 31,
1996, as amended by Amendment No. 1 on Form 10-K/A, filed with
the Commission on May 8, 1996;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the Company's fiscal year
ended December 31, 1995; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, filed with the
Commission on July 30, 1993.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Securities shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
of such 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 Prospectus to the extent that a statement
contained herein or in any subsequently filed document which
2
<PAGE> 4
also is or is 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
Prospectus.
A copy of any or all of the documents incorporated herein by reference
(other than exhibits unless such exhibits are specifically incorporated by
reference in any such document) will be provided without charge to any person,
including a beneficial owner, to whom a copy of this Prospectus is delivered,
upon written or oral request. Requests for such copies should be addressed to
the Secretary of the Company, 16955 Via Del Campo, Suite 110, San Diego,
California 92127 (telephone number: (619) 485-9400).
THE COMPANY
The Company is a self-administered, self-managed real estate investment
trust ("REIT") which acquires, owns and manages neighborhood and community
shopping centers and other retail and commercial properties leased primarily to
major retail companies. As of December 31, 1995, the Company owned or managed
directly or through its subsidiaries 112 properties located in 27 states, having
an aggregate gross leasable area of approximately 7.4 million square feet and
estimated annualized base rental revenue of approximately $45 million.
The Company has paid regular and uninterrupted distributions on the
Common Stock since it commenced operations as a REIT in 1987. These
distributions have increased from $0.18 per share of Common Stock in the fourth
quarter of 1987 to $0.445 per share of Common Stock in the fourth quarter of
1995. The Company intends to continue making regular quarterly distributions to
holders of Common Stock. Distributions depend upon a variety of factors,
however, and there can be no assurance that distributions will continue to be
made.
The Company has elected to be taxed as a REIT for federal income tax
purposes since 1987 and expects to continue to elect such status. Although the
Company believes that it was organized and has been operating in conformity with
the requirements for qualification under the Internal Revenue Code of 1986, as
amended (the "Code"), no assurance can be given that the Company will continue
to qualify as a REIT. Qualification as a REIT involves the application of highly
technical and complex Code provisions for which there are only limited judicial
or administrative interpretations. If in any taxable year the Company were to
fail to qualify as a REIT, the Company would not be allowed a deduction for
distributions to stockholders in computing taxable income and would be subject
to federal taxation at regular corporate rates. As a result, the Company's
ability to make distributions to its stockholders would be adversely affected.
3
<PAGE> 5
To ensure that the Company qualifies as a REIT, transfer of the shares
of Common Stock is subject to certain restrictions and ownership of capital
stock by any single person is limited to 9.8% by value of such capital stock,
subject to certain exceptions. As provided in the Articles of Incorporation of
the Company, any purported transfer in violation of the above-described
ownership limitations (including any such purported transfer by the Selling
Stockholders) shall be void ab initio.
The shares of Common Stock of the Company are listed on the New York
Stock Exchange under the symbol "XEL." The Company was incorporated under the
laws of California in 1985 and reincorporated as a Maryland corporation in July
1993. The Company's executive offices are located at 16955 Via Del Campo, Suite
110, San Diego, California 92127, and its telephone number is (619) 485-9400.
The Company's principal executive officers have worked together in
acquiring and managing retail and commercial real estate for over 15 years and
have administered the investments and affairs of the Company since 1989.
SELLING STOCKHOLDERS
All of the Securities offered hereby will be sold for the account of
the Selling Stockholders. Information regarding the Selling Stockholders is set
forth in the following table.
<TABLE>
<CAPTION>
Stock Owned Stock Offered for Stock Owned
Registered Owners Prior to Offering Stockholders Acct. After Offering
----------------- ----------------- ------------------ --------------
<S> <C> <C> <C>
Horne Properties, Inc. 40,000 40,000 0
Newportfolios, Ltd. 5,663 5,663 0
</TABLE>
None of the Selling Stockholders has any position, office or other
material relationship with the Company or any of its affiliates (or had any such
position, office or material relationship within the past three years), or will
own greater than one percent of the Common Stock of the Company after this
offering.
PLAN OF DISTRIBUTION
The Selling Stockholders are entitled to distribute from time to time
up to 45,663 shares of the Securities, representing approximately 0.3% of the
outstanding Common Stock of the Company on a fully diluted basis as of December
31, 1995. The Selling Stockholders' plan of distribution is set forth on the
cover page of this Prospectus.
EXPERTS
The financial statements and related schedules of the Company included
in the Company's Annual Report on Form 10-K for the year ended December 31,
1995, as amended, and incorporated by reference in this Prospectus have been
incorporated by reference in reliance upon the report of Coopers & Lybrand
L.L.P., independent accountants, given on the authority of that firm as experts
in accounting and auditing.
4
<PAGE> 6
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Latham &
Watkins, San Diego, California. Latham & Watkins will rely as to all matters of
Maryland law, including the legality of the Securities, on the opinion of
Ballard Spahr Andrews & Ingersoll, Baltimore, Maryland.
5
<PAGE> 7
================================================================================
No dealer, salesperson or other individual has been authorized to give
any information or make any representations other than those contained in this
Prospectus and, if given or made, such information or representations must not
be relied upon as having been authorized by the Company. This Prospectus does
not constitute an offer by the Company to sell, or a solicitation of an offer to
buy, the securities offered hereby in any jurisdiction where, or to any person
to whom, it is unlawful to make an offer or solicitation. Neither the delivery
of this Prospectus nor any sale made hereunder shall, under any circumstances,
create an implication that there has been any change in the affairs of the
Company since the date hereof or that the information contained herein is
correct or complete as of any time subsequent to the date hereof.
---------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Additional Information................................................... 2
Incorporation of Certain
Documents by Reference............................................... 2
The Company.............................................................. 3
Selling Stockholders .................................................... 4
Plan of Distribution .................................................... 4
Experts.................................................................. 4
Legal Matters............................................................ 4
</TABLE>
================================================================================
================================================================================
EXCEL REALTY TRUST, INC.
45,663 SHARES
COMMON STOCK
----------------
P R O S P E C T U S
----------------
_________, 1996
================================================================================
<PAGE> 8
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is an itemized statement of expenses incurred in connection
with this Registration Statement. All such expenses will be paid by the Company.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee.............. $ 304
Blue Sky fees and expenses....................................... 2,000
Public accountants' fees......................................... 5,000
Company legal fees and expenses.................................. 11,000
Miscellaneous expenses........................................... 1,696
TOTAL.................................................. $20,000
</TABLE>
All of the above items except the registration fee are estimates.
Item 15. Indemnification of Directors and Officers.
The Company's bylaws require the Company to indemnify its directors,
officers and certain other parties to the fullest extent permitted from time to
time by Maryland law. The Maryland General Corporate Law permits a corporation
to indemnify its directors, officers and certain other parties against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by them in connection with any proceeding to which they may be made a
party by reason of their service to or at the request of the corporation, unless
it is established that the act or omission of the indemnified party was material
to the matter giving rise to the proceedings and (i) was committed in bad faith
or was the result of active and deliberate dishonesty, (ii) the indemnified
party actually received an improper personal benefit, or (iii) in the case of
any criminal proceeding the indemnified party had reasonable cause to believe
that the act or omission was unlawful. Indemnification may be made against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by the director or officer in connection with the proceeding; provided,
however, that if the proceeding is one by or in the right of the corporation,
indemnification may not be made with respect to any proceeding in which the
director or officer has been adjudged to be liable to the corporation. In
addition, a director or officer may not be indemnified with respect to any
proceeding charging improper personal benefit to the director or officer in
which the director or officer was adjudged to be liable on the basis that
personal benefit was improperly received. The termination of any proceeding by
conviction, or upon a plea of nolo contendere or its equivalent, or an entry of
any order of probation prior to judgment, creates a rebuttal presumption that
the director or officer did not meet the requisite standard of conduct required
for indemnification to be permitted. It is the position of the Commission that
indemnification of directors and officers for liabilities arising under the
Securities Act is against public policy as expressed in the Securities Act and
is therefore unenforceable.
II-1
<PAGE> 9
Item 16. Exhibits.
5.1 Opinion of Ballard Spahr Andrews & Ingersoll.
23.1 Consent of Ballard Spahr Andrews & Ingersoll (included in
Exhibit 5.1 hereto).
23.2 Consent of Coopers & Lybrand L.L.P.
24.1 Power of Attorney.
Item 17. Undertakings.
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;
(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 and of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (1)(i)
and (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 with or furnished to the Commission by the Registrant pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(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 which remain
unsold at the termination of the offering.
II-2
<PAGE> 10
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 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.
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 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 Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, State of California, on the 7th day
of May, 1996.
EXCEL REALTY TRUST, INC.
By:/s/ Richard B. Muir
------------------------------------------
Richard B. Muir
Executive Vice President and Secretary
Pursuant to the requirements of the Securities Act, this Amendment
No. 1 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
Gary B. Sabin* President, Chief Executive Officer May 7, 1996
- ---------------------------- and Chairman of the Board
Gary B. Sabin (Principal Executive Officer)
/s/ Richard B. Muir Executive Vice President, Secretary May 7, 1996
- ---------------------------- and Director
Richard B. Muir
David A. Lund* Chief Financial Officer (Principal May 7, 1996
- ---------------------------- Financial and Accounting Officer)
David A. Lund
Boyd A. Lindquist* Director May 7, 1996
- ----------------------------
Boyd A. Lindquist
D. Charles Marston* Director May 7, 1996
- ----------------------------
D. Charles Marston
Robert E. Parsons, Jr.* Director May 7, 1996
- ----------------------------
Robert E. Parsons, Jr.
Bruce A. Staller* Director May 7, 1996
- ----------------------------
Bruce A. Staller
John H. Wilmot* Director May 7, 1996
- ----------------------------
John H. Wilmot
*By:/s/ Richard B. Muir
- -----------------------------
Richard B. Muir
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 12
EXHIBIT INDEX
The following exhibits are filed as part of this Registration Statement
on Form S-3 or are incorporated herein by reference.
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C> <C>
5.1 Opinion of Ballard Spahr Andrews & Ingersoll.(1) ---
23.1 Consent of Ballard Spahr Andrews & Ingersoll (included in ---
Exhibit 5.1 hereto).(1)
23.2 Consent of Coopers & Lybrand L.L.P. 13
24.1 Power of Attorney.(1) ---
</TABLE>
- -----------------
(1) Previously filed.
E-1
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Excel Realty Trust, Inc. on Form S-3 of our report dated February 5, 1996 on our
audits of the consolidated financial statements and financial statement
schedules of Excel Realty Trust, Inc. and subsidiaries as of December 31, 1995
and 1994, and for the years ended December 31, 1995, 1994 and 1993. We also
consent to the reference to our Firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
San Diego, California
May 7, 1996
