As filed with the Securities and Exchange Commission on November 17, 1997
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
GREAT LAKES REIT, INC.
(Exact Name of Registrant as Specified in Its Charter)
Maryland 36-3844714
(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
823 Commerce Drive, Suite 300
Oak Brook, Illinois 60523
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. |X|
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. |_|
Securities Act registration statement file number to which this form
relates:_______________ (If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
Common Stock, $.01 par value New York Stock Exchange
- -------------------------------------------------------- -----------------------
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
(Title of Class)
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Item 1. Description of Registrant's Securities To Be Registered.
The following summary of the terms of the stock of Great Lakes REIT, Inc.
("the Company") does not purport to be complete and is subject to and qualified
in its entirety by reference to the Company's charter and the Company's bylaws,
copies of which are exhibits to this Form 8-A/A.
General
The charter provides that the Company may issue up to 60,000,000 shares
of common stock, $.01 par value per share ("Common Stock"), and 10,000,000
shares of preferred stock, $.01 par value per share ("Preferred Stock"). On
November 17, 1997, 15,685,866 shares of Common Stock were issued and outstanding
and no shares of Preferred Stock were issued and outstanding. Under Maryland
law, stockholders generally are not liable for a corporation's debts or
obligations.
Common Stock
Subject to the preferential rights of any other class or series of
stock and to the provisions of the charter regarding the restrictions on
transfer of stock, holders of shares of Common Stock are entitled to receive
dividends on such stock if, as and when authorized and declared by the Board of
Directors of the Company out of assets legally available therefor and to share
ratably in the assets of the Company legally available for distribution to its
stockholders in the event of its liquidation, dissolution or winding up after
payment of or adequate provision for all known debts and liabilities of the
Company.
Subject to the provisions of the charter regarding the restrictions on
transfer of stock, each outstanding share of Common Stock entitles the holder to
one vote on all matters submitted to a vote of stockholders, including the
election of directors and, except as provided with respect to any other class or
series of stock, the holders of such shares will possess the exclusive voting
power. There is no cumulative voting in the election of directors, which means
that the holders of a majority of the outstanding shares of Common Stock can
elect all of the directors then standing for election and the holders of the
remaining shares will not be able to elect any directors.
Holders of shares of Common Stock have no preference, conversion,
exchange, sinking fund, redemption or appraisal rights and have no preemptive
rights to subscribe for any securities of the Company. Subject to the provisions
of the charter regarding the restrictions on transfer of stock, shares of Common
Stock will have equal dividend, liquidation and other rights.
Under the Maryland General Corporation Law, as amended (the "MGCL") a
Maryland corporation generally cannot dissolve, amend its charter, merge, sell
all or substantially all of its assets, engage in a share exchange or engage in
similar transactions outside the ordinary course of business unless approved by
the affirmative vote of stockholders holding at least two thirds of the shares
entitled to vote on the matter unless a lesser percentage (but not less than a
majority of all of the votes entitled to be cast on the matter) is set forth in
the corporation's charter. The Company's charter provides that such transactions
shall be effective and valid if taken or authorized by the affirmative vote of
stockholders holding a majority of all of the votes entitled to be cast on the
matter.
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The charter authorizes the Board of Directors to reclassify any
unissued shares of Common Stock into other classes or series of classes of stock
and to establish the number of shares in each class or series and to set the
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications or terms or
conditions of redemption for each such class or series.
Power to Issue Additional Shares of Common Stock and Preferred Stock
The Company believes that the power of the Board of Directors to issue
additional authorized but unissued shares of Common Stock or Preferred Stock and
to classify or reclassify unissued shares of Common or Preferred Stock and
thereafter to cause the Company to issue such classified or reclassified shares
of stock will provide the Company with increased flexibility in structuring
possible future financings and acquisitions and in meeting other needs which
might arise. The additional classes or series, as well as the Common Stock, will
be available for issuance without further action by the Company's stockholders,
unless such action is required by applicable law or the rules of any stock
exchange or automated quotation system on which the Company's securities may be
listed or traded. Although the Board of Directors has no intention at the
present time of doing so, it could authorize the Company to issue a class or
series that could, depending upon the terms of such class or series, delay,
defer or prevent a transaction or a change in control of the Company that might
involve a premium price for holders of Common Stock or otherwise be in their
best interest.
Restrictions on Transfer
For the Company to qualify as a real estate investment trust ("REIT")
under the Internal Revenue Code of 1986, as amended (the "Code"), its shares of
stock must be beneficially owned by 100 or more persons during at least 335 days
of a taxable year of twelve months (other than the first year for which an
election to be a REIT has been made) or during a proportionate part of a shorter
taxable year. Also, not more than 50% of the value of the outstanding shares of
stock may be owned, directly or indirectly, by five or fewer individuals (as
defined in the Code to include certain entities such as qualified pension plans)
during the last half of a taxable year (other than the first year for which an
election to be a REIT has been made).
Because the Board of Directors believes it is at present essential for
the Company to qualify as a REIT, the charter, subject to certain exceptions,
contains certain restrictions on the number of shares of stock of the Company
that a person may own. The charter prohibits any person from acquiring or
holding, directly or indirectly, shares of stock in excess of 9.9% in value of
the aggregate of the outstanding shares of stock of the Company (the "Aggregate
Stock Ownership Limit").
The Company's Board of Directors, in its sole discretion, may exempt a
person from the Aggregate Stock Ownership Limit (an "Excepted Holder"). However,
the Board may not grant such an exemption to any person whose ownership, direct
or indirect, of in excess of 9.9% of the value of the outstanding shares of
stock of the Company would result in the Company being "closely held" within the
meaning of Section 856(h) of the Code or otherwise would result in the Company
failing to qualify as a REIT. In order to be considered by the Board as an
Excepted Holder, a person also must not own, directly or indirectly, an interest
in a tenant of the Company (or a tenant of any entity owned or controlled by the
Company) that would cause the Company to own, directly or indirectly, more than
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a 9.9% interest in such a tenant. The person seeking an exemption must represent
to the satisfaction of the Board that it will not violate the two aforementioned
restrictions. The person also must agree that any violation or attempted
violation of any of the foregoing restrictions will result in the automatic
transfer of the shares of stock causing such violation to the Trust (as defined
below). The Board of Directors may require a ruling from the Internal Revenue
Service or an opinion of counsel, in either case in form and substance
satisfactory to the Board of Directors in its sole discretion, in order to
determine or ensure the Company's status as a REIT.
The Company's charter further prohibits (a) any person from
beneficially or constructively owning shares of stock of the Company that would
result in the Company being "closely held" under Section 856(h) of the Code or
otherwise cause the Company to fail to qualify as a REIT and (b) any person from
transferring shares of stock of the Company if such transfer would result in
shares of stock of the Company being owned by fewer than 100 persons. Any person
who acquires or attempts or intends to acquire beneficial or constructive
ownership of shares of stock of the Company that will or may violate any of the
foregoing restrictions on transferability and ownership, or any person who would
have owned shares of the stock of the Company that resulted in a transfer of
shares to the Trust, is required to give notice immediately to the Company and
provide the company with such other information as the Company may request in
order to determine the effect of such transfer on the Company's status as a
REIT. The foregoing restrictions on transferability and ownership will not apply
if the Board of Directors determines that it is no longer in the best interests
of the Company to attempt to qualify, or to continue to qualify, as a REIT.
If any transfer of shares of stock of the Company occurs which, if
effective, would result in any person beneficially or constructively owning
shares of stock of the Company in excess or in violation of the above transfer
or ownership limitations (a "Prohibited Owner"), then that number of shares of
stock of the Company the beneficial or constructive ownership of which otherwise
would cause such person to violate such limitations (rounded to the nearest
whole share) shall be automatically transferred to a trust (the "Trust") for the
exclusive benefit of one or more charitable beneficiaries (the "Charitable
Beneficiary"), and the Prohibited Owner shall not acquire any rights in such
shares. Such automatic transfer shall be deemed to be effective as of the close
of business on the Business Day (as defined in the charter) prior to the date of
such violative transfer. Shares of stock held in the Trust shall be issued and
outstanding shares of stock of the Company. The Prohibited Owner shall not
benefit economically from ownership of any shares of stock held in the Trust,
shall have no rights to dividends and shall not possess any rights to vote or
other rights attributable to the shares of stock held in the Trust. The trustee
of the Trust (the "Trustee") shall have all voting rights and rights to
dividends or other distributions with respect to shares of stock held in the
Trust, which rights shall be exercised for the exclusive benefit of the
Charitable Beneficiary. Any dividend or other distribution paid prior to the
discovery by the Company that shares of stock have been transferred to the
Trustee shall be paid by the recipient of such dividend or distribution to the
Trustee upon demand, and any dividend or other distribution authorized but
unpaid shall be paid when due to the Trustee. Any dividend or distribution so
paid to the Trustee shall be held in trust for the Charitable Beneficiary. The
Prohibited Owner shall have no voting rights with respect to shares of stock
held in the Trust and, subject to Maryland law, effective as of the date that
such shares of stock have been transferred to the Trust, the Trustee shall have
the authority (at the Trustee's sole discretion) (i) to rescind as void any vote
cast by a Prohibited Owner prior to the discovery by the Company that such
shares have been transferred to the Trust and (ii) to recast such vote in
accordance with the desires of the Trustee acting for the benefit of the
Charitable Beneficiary. However, if the Company has already taken irreversible
corporate action, then the Trustee shall not have the authority to rescind and
recast such vote.
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Within 20 days of receiving notice from the Company that shares of
stock of the Company have been transferred to the Trust, the Trustee shall sell
the shares of stock held in the Trust to a person, designated by the Trustee,
whose ownership of the shares will not violate the ownership limitations set
forth in the Company's charter. Upon such sale, the interest of the Charitable
Beneficiary in the shares sold shall terminate and the Trustee shall distribute
the net proceeds of the sale to the Prohibited Owner and to the Charitable
Beneficiary as follows. The Prohibited Owner shall receive the lesser of (i) the
price paid by the Prohibited Owner for the shares or, if the Prohibited Owner
did not give value for the shares in connection with the event causing the
shares to be held in the Trust (e.g., a gift, devise or other such transaction),
the Market Price (as defined in the charter) of such shares on the day of the
event causing the shares to be held in the Trust and (ii) the price per share
received by the Trustee from the sale or other disposition of the shares held in
the Trust. Any net sale proceeds in excess of the amount payable to the
Prohibited Owner shall be paid immediately to the Charitable Beneficiary. If,
prior to the discovery by the Company that shares of stock have been transferred
to the Trust, such shares are sold by a Prohibited Owner, then (i) such shares
shall be deemed to have been sold on behalf of the Trust and (ii) to the extent
that the Prohibited Owner received an amount for such shares that exceeds the
amount that such Prohibited Owner was entitled to receive pursuant to the
aforementioned requirement, such excess shall be paid to the Trustee upon
demand.
In addition, shares of stock of the Company held in the Trust shall be
deemed to have been offered for sale to the Company, or its designee, at a price
per share equal to the lesser of:(i) the price per share in the transaction that
resulted in such transfer to the Trust (or, in the case of a devise or gift, the
Market Price at the time of such devise or gift); and (ii) the Market Price on
the date the Company, or its designee, accepts such offer. The Company shall
have the right to accept such offer until the Trustee has sold the shares of
stock held in the Trust. Upon such a sale to the Company, the interest of the
Charitable Beneficiary in the shares sold shall terminate and the Trustee shall
distribute the net proceeds of the sale to the Prohibited Owner.
All certificates representing shares of Common Stock will bear a legend
referring to the restrictions described above.
Every owner of more than 5% (or such lower percentage as required by
the Code or the regulations promulgated thereunder) of all classes or series of
the Company's stock, including shares of Common Stock, within 30 days after the
end of each taxable year, is required to give written notice to the Company
stating the name and address of such owner, the number of shares of each class
and series of stock of the Company which the owner beneficially owns and a
description of the manner in which such shares are held. Each such owner shall
provide to the Company such additional information as the Company may request in
order to determine the effect, if any, of such beneficial ownership on the
Company's status as a REIT and to ensure compliance with the Aggregate Stock
Ownership Limit. In addition, each stockholder shall upon demand be required to
provide to the Company such information as the Company may request, in good
faith, in order to determine the Company's status as a REIT and to comply with
the requirements of any taxing authority or governmental authority or to
determine such compliance.
These ownership limits could delay, defer or prevent a transaction or a
change in control of the Company that might involve a premium price for the
Common Stock or otherwise be in the best interest of the stockholders.
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Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock is Gemisys
Corporation.
Item 2. Exhibits
The exhibits listed in the accompanying Exhibit Index are
filed as part of this Form 8-A/A.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized, on
November 17, 1997.
GREAT LAKES REIT, INC.
By:/s/ Richard L. Rasley
Richard L. Rasley
Executive Vice President, Co-General
Counsel and Secretary
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Exhibit Index
4.1 Articles of Amendment and Restatement of the Company filed with the
Maryland State Department of Assessments and Taxation on September 23,
1997 (incorporated by reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the period ended September 30, 1997.
4.2 Amended and restated bylaws of the Company dated September 11, 1997
(incorporated by reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-3 filed with the Securities and Exchange
Commission on November 13, 1997).
4.3 Specimen of certificate representing shares of Common Stock
(incorporated by reference to Exhibit 4.3 to the Company's Registration
Statement on Form S-3 filed with the Securities and Exchange Commission
on November 13, 1997).
4.4 Stock Purchase Agreement dated as of August 20, 1996 by and among the
Company and the other parties named therein (incorporated by reference
to Exhibit 1 to the Company's Current Report on Form 8-K filed with the
Securities and Exchange Commission on August 28, 1996).
4.5 Registration Rights Agreement dated as of August 20, 1996 by and among
the Company and the other parties named therein (incorporated by
reference to Exhibit 2 to the Company's Current Report on Form 8-K
filed with the Securities and Exchange Commission on August 28, 1996).
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