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As filed with the Securities and Exchange Commission on November 12, 1999
REGISTRATION NO. 333-70529
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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KEYSTONE PROPERTY TRUST
(Exact name of registrant as specified in its charter)
MARYLAND 84-1246585*
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 FOUR FALLS CORPORATE CENTER
SUITE 208
WEST CONSHOHOCKEN, PENNSYLVANIA 19428
(484) 530-1800
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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JEFFREY E. KELTER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
KEYSTONE PROPERTY TRUST
200 FOUR FALLS CORPORATE CENTER
SUITE 208
WEST CONSHOHOCKEN, PENNSYLVANIA 19428
(484) 530-1800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------
COPIES TO:
BONNIE A. BARSAMIAN
ROBERT E. KING, JR.
ROGERS & WELLS LLP
200 PARK AVENUE
NEW YORK, NEW YORK 10166
*I.R.S. Employer Identification Number of American Real Estate Investment
Corporation, the predecessor of the Registrant prior to the merger described
herein.
Approximate date of commencement of proposed sale to the public: From time
to time or at one time after the effective date of the Registration Statement as
determined by market conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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EXPLANATORY NOTE
Effective October 13, 1999, our predecessor American Real Estate
Investment Trust Corporation, a Maryland corporation, merged with and into us in
order to convert its corporate form from a Maryland corporation to a Maryland
real estate investment trust. We were the surviving entity of the merger. We
succeeded to all of the rights, powers, property and assets of our predecessor
and assumed all of its liabilities, debts and obligations.
Pursuant to Rule 414(d) under the Securities Act of 1933, as amended
(the "Act"), we hereby adopt our predecessor's Registration Statement on Form
S-8 (File No. 333-70529) as our own Registration Statement for all purposes of
the Act and the Securities Exchange Act of 1934, as amended. All references made
in our predecessor's Registration Statement to our predecessor and its
properties and assets shall be deemed to be references to us and our properties
and assets. All references made in our predecessor's Registration Statement to
American Real Estate Investment, L.P. shall be deemed to be references to
Keystone Operating Partnership, L.P. All references in our predecessor's
Registration Statement to our predecessor's Charter shall be deemed to be
references to our Declaration of Trust. All references made in our predecessor's
Registration Statement to Directors shall be deemed to be references to
Trustees. All references made in our predecessor's Registration Statement to
shares of its Common Stock shall be deemed to be references to our Common
Shares, par value $.001 per share. All references made in our predecessor's
Registration Statement to shares of its Preferred Stock shall be deemed to be
references to our Preferred Shares, par value $.001 per share.
We hereby expressly affirm our succession by operation of law pursuant
to this merger of all of our predecessor's rights, powers and obligations under
our predecessor's Registration Statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified by Item 1 and Item 2 of Part I of Form S-8 is
omitted from this filing in accordance with the provisions of Rule 428 under the
Securities Act and the introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
We incorporate by reference into this Registration Statement the
following documents which we previously filed with the Securities and Exchange
Commission (the "Commission") under the File Number 1-12514:
(a) our Annual Report on Form 10-K for the fiscal year ended December 31,
1998;
(b) our Quarterly Reports on Form 10-Q for the calendar quarters ended
March 31, 1999 and June 30, 1999;
(c) our Current Report on Form 8-K filed January 8, 1999, our Current
Report on Form 8-K/A filed January 13, 1999, our Current Report on Form
8-K filed August 20, 1999, our Current Report on Form 8-K filed on
October 12, 1999, our Current Report on Form 8-K filed on October 13,
1999, our Current Report on Form 8-K filed on October 18, 1999, our
Current Report on Form 8-K filed on October 20, 1999 and our Current
Report on Form 8-K filed on November 4, 1999;
(d) the description of our capital stock and the description of the limited
partnership interests of Keystone Operating Partnership, L.P., our
operating partnership, contained in our Registration Statement on Form
8-A/A filed on October 14, 1999 (including any amendments or reports
filed for the purpose of updating such description); and
(e) all other reports we have filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act since December 31, 1998.
When we file documents in accordance with Section 13(a), 13(c), 14 and
15(d) of the Exchange Act between the date of this Post Effective Amendment No.
1 to the Registration Statement and the time we file another post-effective
amendment to the Registration Statement saying all the securities which are the
subject of that Registration Statement have been sold or deregistering any
securities which have not been sold, the documents we file will be incorporated
into this Registration Statement and will be a part of it beginning on the date
the documents are filed. If any documents which we file changes anything said in
this Registration Statement or in an earlier document which is incorporated into
this Registration Statement, the later document will modify or supersede what is
said in this Registration Statement or the earlier document.
You may request a copy of these filings at no cost, other than exhibits
to those documents which are not specifically incorporated by reference, by
writing or telephoning us at the following address:
Keystone Property Trust
200 Four Falls Corporate Center, Suite 208
West Conshohocken, PA 19428
Attention: Investor Relations
Telephone: (484) 530-1800
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ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF TRUSTEES AND OFFICERS
As permitted by Title 8 of the Corporations and Associations Articles
of the Annotated Code of Maryland ("Title 8"), our Declaration of Trust provides
that we shall indemnify (i) our trustees and officers to the fullest extent
required or permitted by Maryland law, including the advance of expenses under
the procedures and to the full extent permitted by law and (ii) other employees
and agents to such extent as shall be authorized by our Board of Trustees or our
Bylaws and be permitted by law. Title 8 requires a real estate investment trust
(a "Trust") to indemnify its present and former trustees and officers, among
others, against expenses incurred by them in connection with a proceedings where
the trustee or officer has been successful, on the merits or otherwise, in the
defense of any such proceedings. In addition, Title 8 permits a Trust to
indemnify its present and former trustees and officers, among others, against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by them in connection with any proceeding to which they may be made a
party by reason of their service in those or other capacities, unless it is
established that (a) the act or omission of the trustee or officer was material
to the matter giving rise to the proceeding and (i) was committed in bad faith,
or (ii) was the result of active and deliberate dishonesty, (b) the trustee or
officer actually received an improper personal benefit in money, property or
services or (c) in the case of any criminal proceeding, the trustee or officer
had reasonable cause to believe that the act or omission was unlawful.
As permitted by Title 8, our Declaration of Trust provides that no
trustee, officer, employee or agent shall be personally liable to the Trust or
its shareholders to the fullest extent permitted by Maryland law. Title 8
permits a Trust to limit the liability of its trustees and officers to the Trust
and its shareholders for money damages, except to the extent that (1) it is
provided that the person actually received an improper benefit or profit in
money, property or services or (2) a judgment or other final adjudication is
entered in a proceeding based on a finding 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.
We have a trustee and officer liability insurance policy with a
$5,000,000 limit of liability and a company retention of $75,000 in the
aggregate for each claim.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Declaration of Trust of the Registrant (incorporated by reference
to Exhibit 3.1 of our Registration Statement on Form S-3, filed with the
Commission on October 15, 1999 (File 333-89095)).
4.2 By-Laws of the Registrant (incorporated by reference to Exhibit 3.5
of our Registration Statement on Form S-3, filed with the Commission on October
15, 1999 (File 333-89095)).
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4.3 Amended and Restated Agreement of Limited Partnership of
Keystone Operating Partnership, L.P. (incorporated by reference to Exhibit 10.1
of our Form 8-K, filed with the Commission on December 22, 1997).
4.4 Specimen of Share Certificate (incorporated by reference to
our Registration Statement on Form S-3, filed with the Commission on October 15,
1999 (File 333-89095)).
5.1 Opinion of Rogers & Wells LLP (Counsel) (incorporated by
reference to Exhibit 5.1 of our Registration Statement on Form S-8, filed with
the Commission on January 13, 1999 (File 333-70529)).
5.2 Opinion of Piper & Marbury L.L.P. (Counsel) (incorporated by
reference to Exhibit 5.2 of our Registration Statement on Form S-8, filed with
the Commission on January 13, 1999 (File 333-70529)).
23.1 Consent of Rogers & Wells LLP (included in Exhibit 5.1).
23.2 Consent of Piper & Marbury L.L.P. (included in Exhibit 5.2).
23.3 Consent of Arthur Andersen LLP.
24 Powers of Attorney (included on signature pages hereto).
99.1 Keystone Property Trust Amended and Restated 1993 Omnibus
Incentive Plan (incorporated by reference to Exhibit A of our Proxy Statement,
filed with the Commission on November 24, 1998).
99.2 Form of Restricted Stock Award Agreement (incorporated by
reference to Exhibit 99.2 of our Registration Statement on Form S-8, filed with
the Commission on January 13, 1999 (File 333-70529)).
ITEM 9. UNDERTAKINGS
(a) 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 this Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% 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 the
undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii)
shall not apply if the information required to be
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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 this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
of any of the securities being registered which remain unsold at
the termination of the offering.
(b) 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 the employee
benefit plan's annual report pursuant to section 15(d) or the Exchange
Act) that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to trustees, 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 Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 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
trustee, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such trustee, 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 Act
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 New York and State of New York on November 12, 1999.
KEYSTONE PROPERTY TRUST
By: /s/ Jeffrey E. Kelter
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Jeffrey E. Kelter
PRESIDENT
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Jeffrey E. Kelter, Timothy A.
Peterson and Timothy E. McKenna, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments, including any post-effective
amendments, to this Registration Statement on Form S-8 and any registration
statement for the same offering that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended, and any and all
applications and other documents in connection therewith, with the Securities
and Exchange Commission and any state or other securities authority, granting
unto said 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
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact or agents, or any of them, or his substitute or substitutes
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.
Name Title Date
---- ----- ----
/s/ David F. McBride
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David F. McBride Chairman And Trustee November 12, 1999
/s/ Jeffrey E. Kelter
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Jeffrey E. Kelter President and Chief Executive November 12, 1999
Officer And Trustee
(Principal Executive Officer)
/s/ Timothy E. Peterson
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Timothy E. Peterson Chief Financial Officer And November 12, 1999
Secretary
(Principal Financial Officer)
/s/ Timothy E. McKenna
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Timothy E. McKenna Senior Vice President, Finance November 12, 1999
and Treasurer
(Principal Accounting Officer)
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Name Title Date
---- ----- ----
/s/ Russell Platt
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Russell Platt Trustee November 12, 1999
/s/ Francesco Galesi
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Francesco Galesi Trustee November 12, 1999
/s/ Michael Falcone
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Michael Falcone Trustee November 12, 1999
/s/ David Lesser
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David Lesser Trustee November 12, 1999
/s/ James Mulvihill
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James Mulvihill Trustee November 12, 1999
/s/ Scott Rechler
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Scott Rechler Trustee November 12, 1999
/s/ Joseph D. Morris
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Joseph D. Morris Trustee November 12, 1999
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Declaration of Trust of the Registrant (incorporated by
reference to Exhibit 3.1 of our Registration Statement on Form
S-3, filed with the Commission on October 15, 1999 (File
333-89095)).
4.2 By-Laws of the Registrant (incorporated by reference to
Exhibit 3.5 of our Registration Statement on Form S-3, filed
with the Commission on October 15, 1999 (File 333-89095)).
4.3 Amended and Restated Agreement of Limited Partnership of
Keystone Operating Partnership, L.P. (incorporated by
reference to Exhibit 10.1 of our Form 8-K, filed with the
Commission on December 22, 1997).
4.4 Specimen of Share Certificate (incorporated by reference to
our Registration Statement on Form S-3, filed with the
Commission on October 15, 1999 (File 333-89095)).
5.1 Opinion of Rogers & Wells LLP (Counsel) (incorporated by
reference to Exhibit 5.1 of our Registration Statement on Form
S-8, filed with the Commission on January 13, 1999 (File
333-70529)).
5.2 Opinion of Piper & Marbury L.L.P. (Counsel) (incorporated by
reference to Exhibit 5.2 of our Registration Statement on Form
S-8, filed with the Commission on January 13, 1999 (File
333-70529)).
23.1 Consent of Rogers & Wells LLP (included in Exhibit 5.1).
23.2 Consent of Piper & Marbury L.L.P. (included in Exhibit 5.2).
23.3 Consent of Arthur Andersen LLP.
24 Powers of Attorney (included on signature pages hereto).
99.1 Keystone Property Trust Amended and Restated 1993 Omnibus
Incentive Plan (incorporated by reference to Exhibit A of our
Proxy Statement, filed with the Commission on November 24,
1998).
99.2 Form of Restricted Stock Award Agreement (incorporated by
reference to Exhibit 99.2 of our Registration Statement on
Form S-8, filed with the Commission on January 13, 1999 (File
333-70529)).
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Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference into this Registration Statement on Form S-8 (the ""Registration
Statement'') of Keystone Property Trust (the ""Company'') of: our report dated
February 18, 1999, on the consolidated financial statements of the Company,
included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1998; our report dated February 13, 1998 on the statement of
revenue and certain expenses of 101 Commerce Drive for the year ended
December 31, 1996, included in the Company's Form 8-K/A dated February 24,
1998; our report dated April 1, 1998 on the statement of revenue and certain
expenses of GATX Properties for the year ended December 31, 1997 and our
report dated June 5, 1998 on the statement of revenue and certain expenses of
Double M Development Properties for the year ended December 31, 1997, both
included in the Company's Form 8-K/A dated June 10, 1998; our report dated
April 1, 1998 on the combined statement of revenue and certain expenses of
Galesi Properties for the year ended December 31, 1997 and our report dated
June 15, 1998 on the statement of revenue and certain expenses of Fed One
Portfolio for the year ended December 31, 1997, both included in the
Company's Form 8-K/A dated July 14, 1998; our report dated July 6, 1998 on
the combined statement of revenue and certain expenses of Pioneer Portfolio
for the year ended December 31, 1997, our report dated July 7, 1998 on the
statement of revenue and certain expenses of ASW Portfolio for the year ended
December 31, 1997 and our report dated July 31, 1998 on the combined
statement of revenue and certain expenses of Szeles Portfolio for the year
ended December 31, 1997, all included in the Company's 8-K dated August 13,
1998; our report dated December 5, 1998 on the combined statement of revenue
and certain expenses of Chambersburg Properties for the year ended December 31,
1997, our report dated December 16, 1998 on the combined statement of
revenue and certain expenses of Browning Investment Portfolio for the year
ended December 31, 1997 and our report dated December 23, 1998 on the
combined statement of revenue and certain expenses of Brashier Portfolio for
the year ended December 31, 1997, all included in the Company's 8-K/A dated
January 13, 1999; our report dated August 13, 1999 on the combined statement
of revenue and certain expenses of Reckson Morris Industrial Portfolio for
the year ended December 31, 1998, our report dated October 11, 1999 on the
combined statement of revenue and certain expenses of Poly-Foam Properties
for the year ended December 31, 1998 and our report dated October 11, 1999 on
the statement of revenue and certain expenses of BMG Property for the year
ended December 31, 1998, all included in the Company's 8-K dated October 12,
1999; and our report dated October 15, 1999 on the statement of revenue and
certain expenses of Lemoyne Property for the year ended December 31, 1998
included in the Company's 8-K dated October 20, 1999 and to all references to
our Firm included in the Registration Statement.
Philadelphia, Pennsylvania
November 12, 1999
