As filed with the Securities and Exchange Commission on August 8, 1997
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CARRAMERICA REALTY CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Maryland 1700 Pennsylvania Avenue, N.W. 52-1796339
- ------------------------------- Washington, D.C. 20006 ---------------------
(State or other jurisdiction of (202) 624-7500 (IRS employer
incorporation or organization) --------------------------------------------------- identification number)
(Address, including zip code, and telephone number,
including area code, of registrants' principal
executive offices)
</TABLE>
------------------------
1997 CarrAmerica Realty Corporation
Stock Option and Incentive Plan
------------------------------------
(Full title of the plan)
------------------------
Thomas A. Carr
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
(202) 624-7500
--------------------------------------------------
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
J. Warren Gorrell, Jr., Esq.
David W. Bonser, Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Amount Proposed maximum Proposed maximum Amount of
Title of securities to be offering price aggregate offering registration
to be registered registered per share(1) price(1) fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per 3,000,000 $30.1875 $90,562,500 $27,443.18
share
=====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended, based
on the average of the high and low prices per share of CarrAmerica Realty
Corporation's Common Stock, par value $0.01 per share, on August 7, 1997,
as reported on the New York Stock Exchange.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part
I will be sent or given to employees participating in the 1997 CarrAmerica
Realty Corporation Stock Option and Incentive Plan (the "Plan") as specified by
Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
In accordance with the instructions to Part I of Form S-8, such documents will
not be filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
CarrAmerica Realty Corporation (the "Registrant") hereby
incorporates herein by reference the following documents filed by it with the
Commission:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1996;
(b) All reports filed by the Registrant with the Commission
pursuant to Section 13(a) or 15(d) of the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"),
since December 31, 1996; and
(c) All documents and reports filed by the Registrant
subsequent to the date hereof pursuant to Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered
have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated
herein by reference and to be part hereof from the date
of filing of such documents or reports.
Any statement contained in a document or report incorporated or
deemed to be incorporated herein by reference shall be deemed to be modified or
superseded to the extent that a statement contained in any other subsequently
filed document or report which also is or is deemed to be incorporated herein by
reference modifies or supersedes such prior statement. The documents required to
be modified or superseded shall not be deemed to constitute a part of the
Registration Statement, except as so modified or superseded.
To the extent that any proxy statement is incorporated herein by
reference, such incorporation shall not include any information contained in
such proxy statement which is not, pursuant to the Commission's rules, deemed to
be "filed" with the Commission or subject to the liabilities of Section 18 of
the Exchange Act.
Item 4. Description of Securities.
A description of the Registrant's common stock, par value $.01
per share (the "Common Stock"), is set forth as Exhibit 99.1 to this
Registration Statement and is incorporated herein by reference.
<PAGE>
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Each director and officer of the Registrant is insured and
indemnified against liability incurred by him or her in his or her capacity as
an officer and/or director, pursuant to the following:
(a) Articles VII and VIII of the Registrant's Articles of
Amendment and Restatement of Articles of Incorporation, as amended, entitled
"Liability" and "Indemnification," respectively, which are set forth as Exhibit
3.1 to this Registration Statement and are incorporated herein by reference;
(b) Section 9.01 of the Registrant's Second Amendment and
Restatement of Bylaws which is set forth as Exhibit 3.2 to this Registration
Statement and is incorporated herein by reference; and
(c) Section 2-418 of the Maryland General Corporation Law and
Section 5-349 of the Courts and Judicial Proceedings Code of Maryland, which are
set forth as Exhibit 99.2 to this Registration Statement and are incorporated
herein by reference.
* * *
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.
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
------ -----------
3.1 Articles VII and VIII of the Amendment and
Restatement of Articles of Incorporation of the
Registrant, as amended (incorporated herein by
reference to the same numbered exhibit to the
Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996)
3.2 Section 9.01 of the Second Amendment and
Restatement of Bylaws of the Registrant
(incorporated herein by reference to Exhibit 3.1
to the Registrant's Current Report on Form 8-K
dated February 12, 1997)
4.1 1997 Stock Option and Incentive Plan
(incorporated herein by reference to Exhibit 10.5
to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1996)
5.1 Opinion of Hogan & Hartson L.L.P. regarding the
legality of the securities being registered
23.1 Consent of Hogan & Hartson L.L.P. (included as
part of Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Powers of Attorney
99.1 Description of the Registrant's Common Stock
99.2 Section 2-418 of the Maryland General Corporation
Law and Section 5-349 of the Courts and Judicial
Proceedings Code of Maryland
Item 9. Undertakings.
I. The undersigned Registrant hereby undertakes:
A. To file, during any period in which offers or sales are
being made, a post-effective amendment to the Registration
Statement:
1. To include any prospectus required by Section
10(a)(3) of the Securities Act;
2. 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
hereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement;
<PAGE>
3. 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;
provided, however, that paragraphs I.A.1. and I.A.2. do not
apply if the Registration Statement is on Form S-3 or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the
Registration Statement.
B. 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.
C. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
II. 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
Section 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 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.
III. The undertaking concerning indemnification is set forth
under the response to Item 6.
<PAGE>
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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the District of Columbia, on August 8, 1997.
CARRAMERICA REALTY CORPORATION,
a Maryland corporation
By: /s/ Brian K. Fields
---------------------------
Brian K. Fields
Chief Financial Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated below:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Chairman of the Board of Directors
- ----------------------------------
Oliver T. Carr, Jr.
* President, Chief Executive Officer July 29, 1997
- ---------------------------------- and Director
Thomas A. Carr
/s/ Brian K. Fields Chief Financial Officer July 29, 1997
- ----------------------------------
Brian K. Fields
* Controller (Chief Accounting Officer) July 29, 1997
- ----------------------------------
Debra A. Volpicelli
* Director July 29, 1997
- ----------------------------------
Andrew F. Brimmer
Director
- ----------------------------------
A. James Clark
* Director July 29, 1997
- ----------------------------------
Caroline S. McBride
* Director July 29, 1997
- ----------------------------------
J. Marshall Peck
<PAGE>
* Director August 1, 1997
- ----------------------------------
William D. Sanders
* Director July 29, 1997
- ----------------------------------
Wesley S. Williams, Jr.
By: /s/ BRIAN K. FIELDS
--------------------------
Brian K. Fields
As Attorney-in-Fact
(See Exhibit 24.1)
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
3.1 Articles VII and VIII of the Articles of Amendment and
Restatement of Articles of Incorporation of the Registrant, as
amended (incorporated herein by reference to the same numbered
exhibit to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1996)
3.2 Section 9.01 of the Second Amendment and Restatement of Bylaws
of the Registrant (incorporated herein by reference to Exhibit
3.1 to the Registrant's Current Report on Form 8-K dated
February 12, 1997)
4.1 1997 Stock Option and Incentive Plan (incorporated herein by
reference to Exhibit 10.5 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1996)
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the
securities being registered
23.1 Consent of Hogan & Hartson L.L.P. (included as part of Exhibit
5.1)
23.2 Consent of KPMG Peat Marwick LLP
24.1 Powers of Attorney
99.1 Description of the Registrant's Common Stock
99.2 Section 2-418 of the Maryland General Corporation Law and
Section 5-349 of the Courts and Judicial Proceedings Code of
Maryland
Exhibit 5.1
Opinion of Hogan & Hartson L.L.P.
regarding the legality of the
securities being registered
HOGAN & HARTSON, L.L.P
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202)-637-5600
(202) 637-5910
August 8, 1997
BY EDGAR
Board of Directors
CarrAmerica Realty Corporation
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Ladies and Gentlemen:
We are acting as counsel to CarrAmerica Realty Corporation, a
Maryland corporation (the "Registrant"), in connection with its registration
statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission relating to up to 3,000,000 shares of the Company's
common stock, par value $.01 per share (the "Shares"), issuable in connection
with the Registrant's 1997 Stock Option and Incentive Plan. This opinion letter
is furnished to you at your request to enable you to fulfill the requirements of
Item 601(b)(5) of Regulation S-K, 17 C.F.R. ss. 229.601(b)(5), in connection
with the Registration Statement.
For purposes of this opinion letter, we have examined copies of
the following documents:
1. An executed copy of the Registration Statement.
2. The Articles of Amendment and Restatement of Articles of
Incorporation of the Registrant, as amended, as certified
by the Secretary of the State of the State of Maryland on
June 26, 1997 and by the Assistant Secretary of the Company
on the date hereof as then being complete, accurate and in
effect.
<PAGE>
3. The Second Amendment and Restatement of Bylaws of the
Registrant, as certified by the Assistant Secretary of the
Registrant on the date hereof as then being complete,
accurate and in effect.
4. Resolutions of the Board of Directors of the Registrant
adopted by unanimous written consent as of August 4, 1997,
as certified by the Assistant Secretary of the Company on
the date hereof as then being complete, accurate and in
effect, relating to authorization of the issuance of the
Shares under the Plan.
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic, or reproduced copies. This opinion letter is
given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the
General Corporation Law of the State of Maryland. We express no opinion herein
as to any other laws, statutes, regulations or ordinances.
Based upon, subject to, and limited by the foregoing, we are of
the opinion that the Shares, when issued and delivered in the manner and on the
terms described in the Form S-8 and the Plan (with the Company having received
the consideration therefor, the form of which is in accordance with applicable
law), will be legally issued, fully paid and non-assessable.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared solely for your use in connection with the filing of the
Registration Statement on the date of this opinion letter and should not be
quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement and to the reference to this firm under
the caption "Legal Matters" in the prospectus constituting a part of the
Registration Statement. In giving this consent, we do not thereby admit that we
are an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
-------------------------------
HOGAN & HARTSON L.L.P.
Exhibit 23.2
Consent of KPMG Peat Marwick LLP
The Board of Directors
CarrAmerica Realty Corporation
We consent to the use of our reports dated February 6, 1997 on the consolidated
financial statemnets and financial statement schedule of CarrAmerica Realty
Corporation (the Company) as of December 31, 1996 and 1995, and for each of the
years in the three-year period ended December 31, 1996, included in the
Company's 1996 Annual Report on Form 10-K, and our reports on the historical
summaries of operating revenue and expenses included in Form 8-K filings of
the Company dated April 18, 1997 and June 20, 1997 all incorporated herein by
reference.
/s/ KPMG Peat Marwick LLP
--------------------------------
KPMG Peat Marwick LLP
Washington, D.C.
August 8, 1997
Exhibit 24.1
Powers of Attorney
POWER OF ATTORNEY
Each individual whose signature appears below hereby constitutes and
appoints Thomas A. Carr and Brian K. Fields, and each of them, as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, to execute and deliver in the undersigned's name and on the
undersigned's behalf a Registration Statement on Form S-8, any additional
registration statement relating to the foregoing and filed pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and any and all
amendments thereto (including post-effective amendments), and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and to execute, deliver and file any other
documents and instruments in the undersigned's name or on the undersigned's
behalf which said attorneys-in-fact and agents, or either of them, may determine
to be necessary or advisable to comply with the Securities Act and any rules and
regulations promulgated thereunder, granting unto such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
either of them, or their substitutes, may lawfully do or cause to be done by
virtue of the power of attorney granted hereby.
DATED: July 29, 1997
/s/ Thomas A. Carr
---------------------------------
Thomas A. Carr
<PAGE>
POWER OF ATTORNEY
Each individual whose signature appears below hereby constitutes and
appoints Thomas A. Carr and Brian K. Fields, and each of them, as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, to execute and deliver in the undersigned's name and on the
undersigned's behalf a Registration Statement on Form S-8, any additional
registration statement relating to the foregoing and filed pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and any and all
amendments thereto (including post-effective amendments), and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and to execute, deliver and file any other
documents and instruments in the undersigned's name or on the undersigned's
behalf which said attorneys-in-fact and agents, or either of them, may determine
to be necessary or advisable to comply with the Securities Act and any rules and
regulations promulgated thereunder, granting unto such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
either of them, or their substitutes, may lawfully do or cause to be done by
virtue of the power of attorney granted hereby.
DATED: July 29, 1997
/s/ Debra A. Volpicelli
---------------------------------
Debra A. Volpicelli
<PAGE>
POWER OF ATTORNEY
Each individual whose signature appears below hereby constitutes and
appoints Thomas A. Carr and Brian K. Fields, and each of them, as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, to execute and deliver in the undersigned's name and on the
undersigned's behalf a Registration Statement on Form S-8, any additional
registration statement relating to the foregoing and filed pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and any and all
amendments thereto (including post-effective amendments), and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and to execute, deliver and file any other
documents and instruments in the undersigned's name or on the undersigned's
behalf which said attorneys-in-fact and agents, or either of them, may determine
to be necessary or advisable to comply with the Securities Act and any rules and
regulations promulgated thereunder, granting unto such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
either of them, or their substitutes, may lawfully do or cause to be done by
virtue of the power of attorney granted hereby.
DATED: July 29, 1997
/s/ Andrew F. Brimmer
---------------------------------
Andrew F. Brimmer
<PAGE>
POWER OF ATTORNEY
Each individual whose signature appears below hereby constitutes and
appoints Thomas A. Carr and Brian K. Fields, and each of them, as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, to execute and deliver in the undersigned's name and on the
undersigned's behalf a Registration Statement on Form S-8, any additional
registration statement relating to the foregoing and filed pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and any and all
amendments thereto (including post-effective amendments), and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and to execute, deliver and file any other
documents and instruments in the undersigned's name or on the undersigned's
behalf which said attorneys-in-fact and agents, or either of them, may determine
to be necessary or advisable to comply with the Securities Act and any rules and
regulations promulgated thereunder, granting unto such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
either of them, or their substitutes, may lawfully do or cause to be done by
virtue of the power of attorney granted hereby.
DATED: July 29, 1997
/s/ Caroline S. McBride
---------------------------------
Caroline S. McBride
<PAGE>
POWER OF ATTORNEY
Each individual whose signature appears below hereby constitutes and
appoints Thomas A. Carr and Brian K. Fields, and each of them, as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, to execute and deliver in the undersigned's name and on the
undersigned's behalf a Registration Statement on Form S-8, any additional
registration statement relating to the foregoing and filed pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and any and all
amendments thereto (including post-effective amendments), and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and to execute, deliver and file any other
documents and instruments in the undersigned's name or on the undersigned's
behalf which said attorneys-in-fact and agents, or either of them, may determine
to be necessary or advisable to comply with the Securities Act and any rules and
regulations promulgated thereunder, granting unto such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
either of them, or their substitutes, may lawfully do or cause to be done by
virtue of the power of attorney granted hereby.
DATED: July 29, 1997
/s/ J. Marshall Peck
---------------------------------
J. Marshall Peck
<PAGE>
POWER OF ATTORNEY
Each individual whose signature appears below hereby constitutes and
appoints Thomas A. Carr and Brian K. Fields, and each of them, as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, to execute and deliver in the undersigned's name and on the
undersigned's behalf a Registration Statement on Form S-8, any additional
registration statement relating to the foregoing and filed pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and any and all
amendments thereto (including post-effective amendments), and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and to execute, deliver and file any other
documents and instruments in the undersigned's name or on the undersigned's
behalf which said attorneys-in-fact and agents, or either of them, may determine
to be necessary or advisable to comply with the Securities Act and any rules and
regulations promulgated thereunder, granting unto such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
either of them, or their substitutes, may lawfully do or cause to be done by
virtue of the power of attorney granted hereby.
DATED: August 1, 1997
/s/ William D. Sanders
---------------------------------
William D. Sanders
<PAGE>
POWER OF ATTORNEY
Each individual whose signature appears below hereby constitutes and
appoints Thomas A. Carr and Brian K. Fields, and each of them, as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, to execute and deliver in the undersigned's name and on the
undersigned's behalf a Registration Statement on Form S-8, any additional
registration statement relating to the foregoing and filed pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and any and all
amendments thereto (including post-effective amendments), and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and to execute, deliver and file any other
documents and instruments in the undersigned's name or on the undersigned's
behalf which said attorneys-in-fact and agents, or either of them, may determine
to be necessary or advisable to comply with the Securities Act and any rules and
regulations promulgated thereunder, granting unto such attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
either of them, or their substitutes, may lawfully do or cause to be done by
virtue of the power of attorney granted hereby.
DATED: July 29, 1997
/s/ Wesley S. Williams, Jr.
---------------------------------
Wesley S. Williams, Jr.
Exhibit 99.1
Description of the Registrant's Common Stock
DESCRIPTION OF COMMON STOCK
General
The Registrant is authorized to issue 90,000,000 shares of Common Stock.
The outstanding Common Stock entitles the holder to one vote on all matters
presented to shareholders for a vote. Holders of Common Stock have no preemptive
rights. At June 30, 1997, there were 57,052,871 shares of Common Stock
outstanding.
Shares of Common Stock currently outstanding are listed for trading on
the New York Stock Exchange (the "NYSE"). The Registrant will apply to the NYSE
to list the additional Common Stock to be sold pursuant to any Prospectus
Supplement, and the Registrant anticipates that such shares will be so listed.
Subject to such preferential rights as may be granted by the Board in
connection with the future issuance of Preferred Stock, holders of Common Stock
are entitled to one vote per share on all matters to be voted on by stockholders
and are entitled to receive ratably such dividends as may be declared on the
Common Stock by the Board in its discretion from funds legally available
therefor. In the event of the liquidation, dissolution or winding up of the
Registrant, holders of Common Stock are entitled to share ratably in all assets
remaining after payment of all debts and other liabilities and any liquidation
preference of the holders of Preferred Stock. Holders of Common Stock have no
subscription, redemption, conversion or preemptive rights. Matters submitted for
stockholder approval generally require a majority vote of the shares present and
voting thereon.
Advance Notice of Director Nominations and New Business
The Bylaws of the Registrant provide that, with respect to an annual
meeting of stockholders, the proposal of business to be considered by
stockholders may be made only (i) by or at the direction of the Board or (ii) by
a stockholder who is entitled to vote at the meeting and who has complied with
the advance notice procedures set forth in the Bylaws. In addition, with respect
to any meeting of stockholders, nominations of persons for election to the Board
may be made only (i) by or at the direction of the Board or (ii) by any
stockholder of the Registrant who is entitled to vote at the meeting and has
complied with the advance notice provisions set forth in the Bylaws.
Restrictions on Transfer
Ownership Limits. The Registrant's Articles of Incorporation contain
certain restrictions on the number of shares of Common Stock that individual
shareholders may own. For the Registrant to qualify as a REIT under the Code, no
more than 50% in value of its outstanding capital stock may be owned, directly
or indirectly, by five or fewer individuals (as defined in the Code to include
certain entities) during the last half of a taxable year (other than the first
year) or during a proportionate part of a shorter taxable year. The capital
stock also must be beneficially owned by 100 or more persons during at least 335
days of a taxable year or during a proportionate part of a shorter taxable year.
Because the Registrant intends to maintain its qualification as a REIT, the
Registrant's Articles of Incorporation contain certain restrictions on the
ownership and transfer of capital stock, including Common Stock, intended to
ensure compliance with these requirements.
Subject to certain exceptions specified in the Articles of
Incorporation, no holder may own, or be deemed to own by virtue of certain
attribution provisions of the Code, more than (A) 5% of the issued and
outstanding shares of Common Stock ("Common Stock Ownership Limit") and/or (B)
more than 5% of any class or series of Preferred Stock. (This limit, in addition
to the Existing Holder Limit, the Special Shareholder Limit, and the Non U.S.
Shareholder Limit, all as defined below, are referred to collectively herein as
the "Ownership Limits.") Existing Holders, including Clark Enterprises Inc., The
Oliver Carr Registrant, Oliver T. Carr, Jr., or A. James Clark, are not subject
<PAGE>
to the Common Stock Ownership Limit, but they are subject to special ownership
limitations (the "Existing Holder Limit"). Furthermore, USRealty and its
affiliates are not subject to the Common Stock Ownership Limit, but are subject
to a special ownership limit of 45% of the outstanding shares of Common Stock
and 45% of the outstanding shares of each class or series of preferred stock of
the Registrant (the "Special Shareholder Limit"). Furthermore, all holders are
prohibited from acquiring any capital stock if such acquisition would cause five
beneficial owners of capital stock to beneficially own in the aggregate more
than 50% in value of the outstanding capital stock.
In addition to the above restrictions on ownership of shares of capital
stock of the Registrant, in order to assist the Registrant in qualifying as a
"domestically controlled REIT," the Articles of Incorporation contain certain
provisions preventing any Non-U.S. Shareholder, as defined below (other than
USRealty and its affiliates), from acquiring additional shares of the
Registrant's capital stock if, as a result of such acquisition, the Registrant
would fail to qualify as a "domestically controlled REIT" (computed assuming
that USRealty owns the maximum percentage of the Registrant's capital stock that
it is permitted to own under the Special Shareholder Limit) ("Non-U.S.
Shareholder Limit"). A Non-U.S. Shareholder is a nonresident alien individual,
foreign corporation, foreign partnership and any other foreign shareholder. For
a discussion of the taxation of a Non-U.S. Shareholder and the requirements for
the Registrant to qualify as a "domestically controlled REIT," see "Federal
Income Tax Considerations--Taxation of Holders of Common Stock--Taxation of
Non-U.S. Shareholders." The Registrant is unlikely to be able to advise a
prospective Non-U.S. Shareholder that its purchase of any shares of the
Registrant's capital stock would not violate this prohibition, thereby
subjecting such prospective Non-U.S. Shareholder to the adverse consequences
described below under "--Violation of Ownership Limits." Accordingly, an
acquisition of the Registrant's capital stock would not likely be a suitable
investment for Non-U.S. Shareholders other than USRealty.
The Board may increase the Ownership Limits from time to time, but may
not do so to the extent that after giving effect to such increase five
beneficial owners of shares of capital stock could beneficially own in the
aggregate more than 49.5% of the Registrant's outstanding shares of capital
stock. The Board, in its sole discretion, may waive the Ownership Limits with
respect to a holder if such holder's ownership will not then or in the future
jeopardize the Registrant's status as a REIT.
Violation of Ownership Limits. The Articles of Incorporation provide
that, if any holder of capital stock of the Registrant purports to transfer
shares to a person or there is a change in the capital structure of the
Registrant and either the transfer or the change in capital structure would
result in the Registrant failing to qualify as a REIT, or such transfer or the
change in capital structure would cause the transferee to hold shares in excess
of the applicable Ownership Limit (including the Non-U.S. Shareholder Limit),
then the capital stock being transferred (or in the case of an event other than
a transfer, the capital stock beneficially owned) that would cause one or more
of the restrictions on ownership or transfer to be violated will be
automatically transferred to a trust for the benefit of a designated charitable
beneficiary. The purported transferee of such shares shall have no right to
receive dividends or other distributions with respect to such shares and shall
have no right to vote such shares. Any dividends or other distributions paid to
such purported transferee prior to the discovery by the Registrant that the
shares have been transferred to a trust shall be paid upon demand to the trustee
of the trust for the benefit of the charitable beneficiary. The trustee of the
trust will have all rights to dividends with respect to the shares of capital
stock held in trust, which rights will be exercised for the exclusive benefit of
the charitable beneficiary. Any dividends or distributions paid over to the
trustee will be held in trust for the charitable beneficiary. The trustee shall
designate a transferee of such stock so long as such shares of stock would not
violate the Ownership Limitations in the hands of such designated transferee.
Upon the sale of such shares, the purported transferee shall receive the lesser
of (A) (i) the price per share such purported transferee paid for the capital
stock in the purported transfer that resulted in the transfer of shares of
capital stock to the trust, or (ii) if the transfer or other event that resulted
in the transfer of shares of capital stock to the trust was not a transaction in
which the purported record transferee of shares of capital
<PAGE>
stock gave full value for such shares, a price per share equal to the market
price on the date of the purported transfer or other event that resulted in the
transfer of the shares to the trust, and (B) the price per share received by the
trustee from the sale or disposition of the shares held in the trust.
All certificates representing 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 regulations thereunder) of the issued and outstanding shares of Common
Stock must file a written notice with the Registrant containing the information
specified in the Articles of Incorporation no later than December 31 of each
year. In addition, each shareholder shall upon demand be required to disclose to
the Registrant in writing such information as the Registrant may request in good
faith in order to determine the Registrant's status as a REIT.
Registrar and Transfer Agent
The Registrar and Transfer Agent for the Common Stock is BankBoston,
N.A.
Exhibit 99.2
Section 2-418 of the Maryland General Corporation Law and
Section 5-349 of the Courts and Judicial Proceedings Code of Maryland
2-418 INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS.
(a) In this section the following words have the meaning indicated.
(1) "Director" means any person who is or was a director of a
corporation and any person who, while a director of a corporation, is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, other enterprise, or employee benefit plan.
(2) "Corporation" includes any domestic or foreign predecessor
entity of a corporation in a merger, consolidation, or other transaction in
which the predecessor's existence ceased upon consummation of the transaction.
(3) "Expenses" include attorney's fees.
(4) "Official capacity" means the following:
(i) When used with respect to a director, the office of
director in the corporation; and
(ii) When used with respect to a person other than a
director as contemplated in subsection (j), the elective or appointive
office in the corporation held by the officer, or the employment or
agency relationship undertaken by the employee or agent in behalf of the
corporation.
(iii) "Official capacity" does not include service for
any other foreign or domestic corporation or any partnership, joint
venture, trust, other enterprise, or employee benefit plan.
(5) "Party" includes a person who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
(6) "Proceeding" means any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative, or
investigative.
(b) (1) A corporation may indemnify any director made a party to any
proceeding by reason of service in that capacity unless it is established that:
(i) The act or omission of the director was material to
the matter giving rise to the proceeding; and
1. Was committed in bad faith; or
2. Was the result of active and deliberate
dishonesty; or
(ii) The director actually received an improper personal
benefit in money, property, or services; or
(iii) In the case of any criminal proceeding, the
director had reasonable cause to believe that the act or omission was
unlawful.
(2) (i) Indemnification may be against judgments, penalties,
fines, settlements, and reasonable expenses actually incurred by the director in
connection with the proceeding.
<PAGE>
(ii) However, if the proceeding was one by or in the
right of the corporation, indemnification may not be made in respect of
any proceeding in which the director shall have been adjudged to be
liable to the corporation.
(3) (i) The termination of any proceeding by judgment, order,
or settlement does not create a presumption that the director did not meet the
requisite standard of conduct set forth in this subsection.
(ii) The termination of any proceeding by conviction, or
a plea of nolo contendere or its equivalent, or an entry of an order of
probation prior to judgment, creates a rebuttable presumption that the
director did not meet that standard of conduct.
(c) A director may not be indemnified under subsection (B) of this
section in respect of any proceeding charging improper personal benefit to the
director, whether or not involving action in the director's official capacity,
in which the director was adjudged to be liable on the basis that personal
benefit was improperly received.
(d) Unless limited by the charter:
(1) A director who has been successful, on the merits or
otherwise, in the defense of any proceeding referred to in subsection (B) of
this section shall be indemnified against reasonable expenses incurred by the
director in connection with the proceeding.
(2) A court of appropriate jurisdiction upon application of a
director and such notice as the court shall require, may order indemnification
in the following circumstances:
(i) If it determines a director is entitled to
reimbursement under paragraph (1) of this subsection, the court shall
order indemnification, in which case the director shall be entitled to
recover the expenses of securing such reimbursement; or
(ii) If it determines that the director is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, whether or not the director has met the standards of
conduct set forth in subsection (b) of this section or has been adjudged
liable under the circumstances described in subsection (c) of this
section, the court may order such indemnification as the court shall
deem proper. However, indemnification with respect to any proceeding by
or in the right of the corporation or in which liability shall have been
adjudged in the circumstances described in subsection (c) shall be
limited to expenses.
(3) A court of appropriate jurisdiction may be the same court in
which the proceeding involving the director's liability took place.
(e) (1) Indemnification under subsection (b) of this section may not be
made by the corporation unless authorized for a specific proceeding after a
determination has been made that indemnification of the director is permissible
in the circumstances because the director has met the standard of conduct set
forth in subsection (b) of this section.
(2) Such determination shall be made:
(i) By the board of directors by a majority vote of a
quorum consisting of directors not, at the time, parties to the
proceeding, or, if such a quorum cannot be obtained, then by a majority
vote of a committee of the board consisting solely of two or more
directors not, at the time, parties to such proceeding and who were duly
designated to act in the matter by a majority vote of the full board in
which the designated directors who are parties may participate;
<PAGE>
(ii) By special legal counsel selected by the board of
directors or a committee of the board by vote as set forth in
subparagraph (i) of this paragraph, or, if the requisite quorum of the
full board cannot be obtained therefor and the committee cannot be
established, by a majority vote of the full board in which directors who
are parties may participate; or
(iii) By the stockholders.
(3) Authorization of indemnification and determination as to
reasonableness of expenses shall be made in the same manner as the determination
that indemnification is permissible. However, if the determination that
indemnification is permissible is made by special legal counsel, authorization
of indemnification and determination as to reasonableness of expenses shall be
made in the manner specified in subparagraph (ii) of paragraph (2) of this
subsection for selection of such counsel.
(4) Shares held by directors who are parties to the proceeding
may not be voted on the subject matter under this subsection.
(f) (1) Reasonable expenses incurred by a director who is a party to
a proceeding may be paid or reimbursed by the corporation in advance of the
final disposition of the proceeding upon receipt by the corporation of:
(i) A written affirmation by the director of the
director's good faith belief that the standard of conduct necessary for
indemnification by the corporation as authorized in this section has
been met; and
(ii) A written undertaking by or on behalf of the
director to repay the amount if it shall ultimately be determined that
the standard of conduct has not been met.
(2) The undertaking required by subparagraph (ii) of paragraph
(1) of this subsection shall be an unlimited general obligation of the director
but need not be secured and may be accepted without reference to financial
ability to make the repayment.
(3) Payments under this subsection shall be made as provided by
the charter, bylaws, or contract or as specified in subsection (e) of this
section.
(g) The indemnification and advancement of expenses provided or
authorized by this section may not be deemed exclusive of any other rights, by
indemnification or otherwise, to which a director may be entitled under the
charter, the bylaws, a resolution of stockholders or directors, an agreement or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office.
(h) This section does not limit the corporation's power to pay or
reimburse expenses incurred by a director in connection with an appearance as a
witness in a proceeding at a time when the director has not been made a named
defendant or respondent in the proceeding.
(i) For purposes of this section:
(1) The corporation shall be deemed to have requested a director
to serve an employee benefit plan where the performance of the director's duties
to the corporation also imposes duties on, or otherwise involves services by,
the director to the plan or participants or beneficiaries of the plan:
<PAGE>
(2) Excise taxes assessed on a director with respect to an
employee benefit plan pursuant to applicable law shall be deemed fines; and
(3) Action taken or omitted by the director with respect to an
employee benefit plan in the performance of the director's duties for a purpose
reasonably believed by the director to be in the interest of the participants
and beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the corporation.
(j) Unless limited by the charter:
(1) An officer of the corporation shall be indemnified as and to
the extent provided in subsection (d) of this section for a director and shall
be entitled, to the same extent as a director, to seek indemnification pursuant
to the provisions of subsection (d);
(2) A corporation may indemnify and advance expenses to an
officer, employee, or agent of the corporation to the same extent that it may
indemnify directors under this section; and
(3) A corporation, in addition, may indemnify and advance
expenses to an officer, employee, or agent who is not a director to such further
extent, consistent with law, as may be provided by its charter, bylaws, general
or specific action of its board of directors or contract.
(k) (1) A corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee, or agent of the
corporation, or who, while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, other enterprise, or employee
benefit plan against any liability asserted against and incurred by such person
in any such capacity or arising out of such person's position, whether or not
the corporation would have the power to indemnify against liability under the
provisions of this section.
(2) A corporation may provide similar protection, including a
trust fund, letter of credit, or surety bond, not inconsistent with this
section.
(3) The insurance or similar protection may be provided by a
subsidiary or an affiliate of the corporation.
(l) Any indemnification of, or advance of expenses to, a director in
accordance with this section, if arising out of a proceeding by or in the right
of the corporation, shall be reported in writing to the stockholders with the
notice of the next stockholders' meeting or prior to the meeting.
<PAGE>
5-349 PROHIBITED ACTIONS AND IMMUNITIES -- CHARTER PROVISIONS GOVERNING
LIABILITY OF CORPORATE DIRECTORS OR OFFICERS.
(a) Expansion or Limitation of Liability. The charter, as defined under
ss. 1-101 of the Corporations and Associations Article, of a Maryland
corporation may include any provision expanding or limiting the liability of its
directors and officers to the corporation or its stockholders for money damages,
but may not include any provision that restricts or limits the liability of its
directors or officers to the corporation or its stockholders:
(1) To the extent that it is proved that the person actually
received an improper benefit or profit in money, property, or services for the
amount of the benefit or profit in money, property, or services actually
received;
(2) To the extent that a judgment or other final adjudication
adverse to the person is entered in a proceeding based on a finding in the
proceeding that the person's action, or failure to act, was the result of active
and deliberate dishonesty and was material to the cause of action adjudicated in
the proceeding; or
(3) With respect to any action described in subsection (b) of
this section.
(b) Exceptions. This section does not apply to an action brought by or
on behalf of a State governmental entity, receiver, conservator, or depositor
against a director or officer of:
(1) A banking institution as defined in ss. 1-101 of the
Financial Institutions Articles;
(2) A credit union as described in ss. 6-201 of the Financial
Institutions
(3) A savings and loan association as defined in ss. 8-101 of
the Financial Institutions Article; or
(4) A subsidiary of a banking institution, credit union, or
savings and loan association described in this subsection.
(c) Construction. This section may not be construed to affect the
liability of a person in any capacity other than the person's capacity as a
director or officer.
