<PAGE>
As filed with the Securities and Exchange Commission on May 19, 1999
Registration No. 333- ______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
POST EFFECTIVE AMENDMENT TO FORM S-4
ON
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-------------------------
PROLOGIS TRUST
(Exact name of registrant as specified in its charter)
-------------------------
Maryland 74-2604728
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
14100 East 35th Place
Aurora, Colorado 80011
(Address of principal executive offices)
Registrant's telephone number, including area code:
(303) 375-9292
-------------------------
MERIDIAN INDUSTRIAL TRUST, INC. EMPLOYEE AND DIRECTOR INCENTIVE STOCK PLAN
(Full title of the plan)
Edward S. Nekritz
Secretary and Senior Vice President
ProLogis Trust
14100 East 35th Place
Aurora, Colorado 80011
(303) 375-9292
(Agent for service)
Copies to:
Michael T. Blair
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, Illinois 60603
(312) 782-0600
-------------------------
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This Registration Statement is being filed as a post-effective amendment to
ProLogis Trust's (the "Registrant") Registration Statement on Form S-4 (File No.
333-69001), as amended, with respect to the Meridian Industrial Trust, Inc.
Amended and Restated Employee and Director Incentive Stock Plan, as amended (the
"Plan"), which was assumed by the Registrant in connection with the merger of
Meridian Industrial Trust, Inc. with and into the Registrant.
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INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of documents by reference.
The following documents, which have heretofore been filed by the
Registrant with the Securities and Exchange Commission (File No. 1-12846) are
incorporated by reference herein and shall be deemed to be a part hereof:
(a) Annual Report on Form 10-K for the year ended December 31, 1998, as
amended by Form 10-K/A filed April 30, 1999;
(b) Quarterly Report of Form 10-Q for the quarter ending March 31,
1998;
(c) Current Reports on Form 8-K filed March 24, 1999, March 31, 1999,
April 13, 1999, April 15, 1999, and April 16, 1999, and Form 8-K/A
filed April 22, 1999;
(d) The description of the Registrant's Common Shares of Beneficial
Interest contained in the Registrant's registration statement on
Form 8-A, as amended; and
(e) The description of the Registrant's preferred share purchase rights
contained in the Registrant's registration statement of Form 8-A,
as amended.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated herein by
reference and shall be deemed a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Trustees and Officers.
Article 4, Section 11, of the Declaration of Trust provides as follows
with respect to indemnification of Trustees:
"The Trust shall indemnify and hold harmless each Trustee from and
against all claims and liabilities, whether they proceed to judgment or
are settled, to which such Trustee may become subject by reason of his
being or having been a Trustee, or by reason of any action alleged to
have been taken or omitted by him as Trustee, and shall reimburse him
for all legal and other expenses reasonably incurred by him in
connection with any such claim or liability, including any claim or
liability arising under the provisions of federal or state securities
laws; provided, however, that no Trustee shall be indemnified or
reimbursed under the foregoing provisions in relation to any matter
unless it shall have been adjudicated that his action or omission did
not constitute willful misfeasance, bad faith or gross negligence in the
conduct of his duties, or, unless, in the absence of such an
adjudication, the Trust shall have received a written opinion from
independent counsel, approved by the Trustees, to the effect that if the
matter of willful misfeasance, bad faith or gross negligence in the
conduct of duties had been adjudicated, it would have been adjudicated
in favor of such Trustee. The Trust, without requiring a preliminary
determination of the ultimate entitlement to indemnification, shall pay
or reimburse reasonable expenses incurred by any Trustee in connection
with any threatened, pending or completed action, suit or proceeding to
which such Trustee is, was or at any time becomes a party or is
threatened to be made a party, as a result directly or indirectly, of
serving at any time as a Trustee. The rights accruing to a Trustee under
these provisions shall not exclude any other right to which he may be
lawfully entitled, nor shall anything herein contained restrict the
right of the Trust to indemnify or reimburse such Trustee in any proper
cause even though not specifically provided for herein."
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Article 9, Section 1 of the Declaration of Trust provides as follows
with respect to the limitation of liability of Trustees and officers and
indemnification:
"A Trustee or officer of the Trust shall not be liable for monetary
damages to the Trust or its shareholders for any act or omission in the
performance of his duties unless:
(1) The Trustee or officer actually received an improper benefit in
money, property or services (in which case, such liability shall be for the
amount of the benefit in money, property or services actually received);
(2) The Trustee's or officer's action or failure to act was the result
of active and deliberate dishonesty and was material to the cause of action
being adjudicated;
(3) The Trustee's or officer's action or failure to act constitutes
willful misconduct or deliberate recklessness; or
(4) Such liability to the Trust is specifically imposed upon Trustees or
officers by statute."
Article 9, Section 6 of the Declaration of Trust provides as follows
with respect to the indemnification of Trustees and officers:
"Notwithstanding any other provisions of this Declaration of Trust, the
Trust, for the purpose of providing indemnification for its Trustees and
officers, shall have the authority, without specific shareholder
approval, to enter into insurance or other arrangements, with persons or
entities which are not regularly engaged in the business of providing
insurance coverage, to indemnify all Trustees and officers of the Trust
against any and all liabilities and expenses incurred by them by reason
of their being Trustees or officers of the Trust, whether or not the
Trust would otherwise have the power under this Declaration of Trust or
under Maryland law to indemnify such persons against such liability.
Without limiting the power of the Trust to procure or maintain any kind
of insurance or other arrangement, the Trust may, for the benefit of
persons indemnified by it, (i) create a trust fund, (ii) establish any
form of self-insurance, (iii) secure its indemnity obligations by grant
of any security interest or other lien on the assets of the corporation,
or (iv) establish a letter of credit, guaranty or surety arrangement.
Any such insurance or other arrangement may be procured, maintained or
established within the Trust or with any insurer or other person deemed
appropriate by the Board of Trustees regardless of whether all or part
of the stock or other securities thereof are owned in whole or in part
by the Trust. In the absence of fraud, the judgment of the Board of
Trustees as to the terms and conditions of insurance or other
arrangement and the identity of the insurer or other person
participating in any arrangement shall be conclusive, and such insurance
or other arrangement shall not be subject to voidability, nor subject
the Trustees approving such insurance or other arrangement to liability,
on any ground, regardless of whether Trustees participating and
approving such insurance or other arrangement shall be beneficiaries
thereof."
The Registrant has entered into indemnity agreements with each of its
officers and Trustees which provide for reimbursement of all expenses and
liabilities of such officer or Trustee, arising out of any lawsuit or claim
against such officer or Trustee due to the fact that he was or is serving as an
officer or Trustee, except for such liabilities and expenses (a) the payment of
which is judicially determined to be unlawful, (b) relating to claims under
Section 16(b) of the Exchange Act or (c) relating to judicially determined
criminal violations. In addition, the Registrant has entered into indemnity
agreements with each of its Trustees who is not also an officer of the
Registrant which provide for indemnification and advancement of expenses to the
fullest lawful extent permitted by Maryland law in connection with any pending
or completed action, suit or proceeding by reason of serving as a Trustee and
the Registrant has established a trust to fund payments under the
indemnification agreements.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits.
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Item 9. Undertakings.
A. Rule 415 Offering.
-----------------
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; notwithstanding the foregoing, any increase or
decrease in the 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
Securities and Exchange Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 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 the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) 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.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of 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.
B. Filings Incorporating Subsequent Exchange Act Documents by
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Reference.
---------
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
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.
C. Indemnification of Trustees and Officers.
----------------------------------------
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions of the Registrant's charter or by-laws
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Aurora, State of Colorado, on May 17, 1999.
PROLOGIS TRUST
By: /s/ Edward S. Nekritz
-------------------------------------------
Edward S. Nekritz
Secretary and Senior Vice President
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of ProLogis Trust, a Maryland real
estate investment trust, and the undersigned trustees and officers of ProLogis
Trust, hereby constitutes and appoints K. Dane Brooksher, M. Gordon Keiser, Jr.,
Edward F. Long, and Edward S. Nekritz, its or his true and lawful attorneys-in-
fact and agents, for it or him and in its or his name, place and stead, in any
and all capacities, with full power to act alone, to sign any and all amendments
to this report, and to file each such amendment to this report, with all
exhibits thereto, and any and all documents in connection therewith, with the
Securities and Exchange Commission, hereby granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform any and
all acts and things requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as it or he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman, Chief Executive Officer May 17, 1999
----------------------- and Trustee
K. Dane Brooksher
* President, Chief Investment Officer May 17, 1999
------------------------ and Trustee
Irving F. Lyons III
/s/ Walter C. Rakowich Chief Financial Officer and May 17, 1999
------------------------- Managing Director
Walter C. Rakowich
/s/ Shari J. Jones Vice President May 17, 1999
------------------------- (Principal Accounting Officer)
Shari J. Jones
*
------------------------- May 17, 1999
Thomas G. Wattles Trustee
*
------------------------ May 17, 1999
Stephen L. Feinberg Trustee
*
------------------------- May 17, 1999
Donald P. Jacobs Trustee
</TABLE>
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*
----------------------- May 17, 1999
William G. Myers Trustee
*
----------------------- May 17, 1999
John E. Robson Trustee
_______________________
J. Andre Teixeira Trustee
*
----------------------- May 17, 1999
Thomas G. Wattles Trustee
_______________________
John S. Moody Trustee
________________________
Kenneth N. Stensby Trustee
* By: /s/ Edward S. Nekritz
-----------------------------------------------
Edward S. Nekritz
Attorney-in-fact
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<PAGE>
INDEX TO EXHIBITS
4.1 Rights Agreement, dated as of December 31, 1993, between ProLogis and
State Street Bank and Trust Company, as Rights Agent, including form
of Rights Certificate (Incorporated by reference to exhibit 4.4 to
ProLogis' registration statement No. 33-78080)
4.2 First Amendment to Rights Amendment, dated as of February 15, 1995,
between ProLogis, State Street Bank and Trust Company and The First
National Bank of Boston, as successor Rights Agent (Incorporated by
reference to exhibit 3.1 to ProLogis' Form 10-Q for the quarter ended
September 30, 1995)
4.3 Second Amendment to Rights Agreement, dated as of June 22, 1995,
between ProLogis State Street Bank and Trust Company and The First
National Bank of Boston (Incorporated by reference to Exhibit 3.1 to
ProLogis' Form 10-Q for the quarter ended September 30, 1995)
4.4 Form of share certificate for Common Shares of Beneficial Interest of
ProLogis (Incorporated by reference to exhibit 4.4 to ProLogis'
registration statement No. 33-73382)
4.5 Form of share certificate for Series A Cumulative Redeemable Preferred
Shares of Beneficial Interest of ProLogis (Incorporated by reference
to exhibit 4.7 to ProLogis' Form 8-A registration statement relating
to such shares)
4.6 8.72% Note due March 1, 2009 (Incorporated by reference to exhibit 4.7
to ProLogis' Form 10-K for the year ended December 31, 1994)
4.7 Form of share certificate for Series B Cumulative Convertible
Redeemable Preferred Shares of Beneficial Interest of ProLogis
(Incorporated by reference to exhibit 4.8 to ProLogis' Form 8-A
registration statement relating to such shares)
4.8 Form of share certificate for Series C Cumulative Redeemable Preferred
Shares of Beneficial Interest of ProLogis (Incorporated by reference
to exhibit 4.8 to ProLogis' Form 10-K for the year ended December 31,
1996)
4.9 Form of share certificate for Series D Cumulative Redeemable Preferred
Shares of Beneficial Interest of ProLogis (Incorporated by reference
to exhibit 4.21 to ProLogis' registration statement No. 69001)
4.10 Form of share certificate for Series E Cumulative Redeemable Preferred
Shares of Beneficial Interest of ProLogis (Incorporated by reference
to exhibit 4.22 to ProLogis' registration statement No. 69001)
4.11 9.34% Note due March 1, 2015 (Incorporated by reference to exhibit 4.8
to ProLogis' Form 10-K for the year ended December 31, 1994)
4.12 7.875% Note due May 15, 2009 (Incorporated by reference to exhibit 4.4
to ProLogis' Form 8-K dated May 9, 1995)
4.13 7.30% Note due May 15, 2001 (Incorporated by reference to exhibit 4.3
to ProLogis' Form 8-K dated May 9, 1995)
4.14 7.25% Note due May 15, 2000 (Incorporated by reference to exhibit 4.2
to ProLogis' Form 8-K dated May 9, 1995)
4.15 7.125% Note due May 15, 1998 (Incorporated by reference to exhibit 4.1
to ProLogis' Form 8-K dated May 9, 1995)
4.16 7.25% Note due May 15, 2002 (Incorporated by reference to exhibit 4.1
to ProLogis' Form 10-Q for the quarter ended June 30, 1996)
4.17 7.95% Note due May 15, 2008 (Incorporated by reference to exhibit 4.2
to ProLogis' Form 10-Q for the quarter ended June 30, 1996)
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4.18 8.65% Note due May 15, 2016 (Incorporated by reference to exhibit 4.3
to ProLogis' Form 10-Q for the quarter ended June 30, 1996)
4.19 7.81% Medium-Term Notes, Series A, due February 1, 2015 (Incorporated
by reference to exhibit 4.17 to ProLogis' Form 10-K for the year ended
December 31, 1996)
4.20 Indenture, dated as of March 1, 1995, between ProLogis and State
Street Bank and Trust Company, as Trustee (Incorporated by reference
to exhibit 4.9 to ProLogis' Form 10-K for the year ended December 31,
1994)
4.21 Collateral Trust Indenture, dated as of July 22, 1993, between
Krauss/Schwartz Properties, Ltd. and NationsBank of Virginia, N.A., as
Trustee (Incorporated by reference to exhibit 4.10 to ProLogis' Form
10-K for the year ended December 31, 1994)
4.22 First Supplemental Collateral Trust Indenture, dated as of October 28,
1994, among ProLogis Limited Partnership-IV, Krauss/Schwartz
Properties, Ltd., and NationsBank of Virginia, N.A., as Trustee
(Incorporated by reference to exhibit 10.6 to ProLogis' Form 10-Q for
the quarter ended September 30, 1994)
4.23 Meridian Industrial Trust, Inc. Amended and Restated Employee and
Director Incentive Stock Plan (Filed with Meridian's Form 10-K for the
year ending December 31, 1996, File No. 1-14166)
5+ Opinion of Mayer, Brown & Platt
15 Letter regarding unaudited interim financial information
23.1 Consent of Mayer, Brown & Platt (included in its opinion filed as
Exhibit 5)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of KPMG LLP, Stockholm
24.1 Power of Attorney (included on page II-5)
______________
+ Previously filed.
II-8
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EXHIBIT 15
May 17, 1999
Board of Trustees and Shareholders of
ProLogis Trust
We are aware that ProLogis Trust has incorporated by reference in this
registration statement its Form 10-Q for the quarter ended March 31, 1999, which
includes our report dated May 13, 1999 covering the unaudited interim financial
information contained therein. Pursuant to Regulation C of the Securities Act of
1993 (the "Act"), that report is not considered a part of the registration
statements prepared or certified by our firm or a report prepared or certified
by our firm within the meaning of Sections 7 and 11 of the Act.
Very truly yours,
/s/ Arthur Andersen LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
March 5, 1998 included in ProLogis Trust's Form 10-K for the year ended December
31, 1998, and to our report dated March 26, 1999, included in ProLogis Trust's
Form 8-K dated April 13, 1999, and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
Chicago, Illinois
May 17, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants of Frigoscandia Holding AB, we
hereby consent to the incorporation of our report dated January 28, 1999
included in the ProLogis Trust's Form 10-K for the year ended December 31, 1998
into the ProLogis Trust registration statement on Form S-8 relating to the
Meridian Industrial Trust, Inc. Employee and Director Incentive Stock Plan. It
should be noted that we have not audited any financial statements of the company
subsequent to December 31, 1998 or performed any audit procedures subsequent to
the date of our report.
/s/ KPMG LLP
Stockholm, May 17, 1999
