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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 1998
REGISTRATION NO. 333-45597
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 4 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PACIFIC GULF PROPERTIES INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
MARYLAND 33-0577520
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NO.)
ORGANIZATION)
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4220 VON KARMAN AVENUE
NEWPORT BEACH, CALIFORNIA 92660
(714) 223-5000
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
GLENN L. CARPENTER
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
PACIFIC GULF PROPERTIES INC.
4220 VON KARMAN AVENUE
NEWPORT BEACH, CALIFORNIA 92660
(714)223-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
DHIYA EL-SADEN, ESQ.
GIBSON, DUNN & CRUTCHER LLP
333 SOUTH GRAND AVENUE
LOS ANGELES, CALIFORNIA 90067
(213)229-7000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
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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 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 of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering: [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
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: [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a)
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated fees and expenses payable by
the Company in connection with the issuance and distribution of the Securities
registered hereby:
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Registration fee............................................ $ 88,500
NYSE listing fee............................................ 20,000
Printing, duplicating and engraving expenses................ 80,000
Legal fees and expenses (other than Blue Sky)............... 150,000
Accounting fees and expenses................................ 60,000
Blue sky fees and expenses.................................. 15,000
Miscellaneous............................................... 11,500
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Total............................................. $425,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation limit the liability of the
Company's directors and officers the Company and its stockholders to the fullest
extent permitted from time to time by Maryland law. Maryland law presently
permits the liability of directors and officers to a corporation or its
stockholders for money damages to be limited, except (i) to the extent that it
is proved that the director or officer actually received an improper benefit or
profit or (ii) if a judgment or other final adjudication is entered in a
proceeding based on a finding that the director'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 adjudicated in the proceeding. This provision
does not limit the ability of the Company or its stockholders to obtain other
relief, such as an injunction or rescission.
The Company's Bylaws require the Company to indemnify its directors,
officers, and certain other parties to the fullest extent permitted from time to
time by Maryland law. The Articles of Incorporation also permit the Company to
indemnify employees, agents and other persons acting on behalf of or at the
request of the Company. The MGCL permits a corporation to indemnify its
directors, officers and certain other parties against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason of
their service to or at the request of the corporation, unless it is established
that the act or omission of the indemnified party was material to the matter
giving rise to the proceeding and (i) was committed in bad faith or was the
result of active and deliberate dishonesty, (ii) the indemnified party actually
received an improper personal benefit or (iii) in the case of any criminal
proceeding, the indemnified party had reasonable cause to believe that the act
or omission was unlawful. Indemnification may be made against judgments,
penalties, fines, settlements and reasonable expenses actually incurred by the
director or officer in connection with the proceeding; provided, however, that
if the proceeding is one by or in the right of the corporation, indemnification
may not be made with respect to any proceeding in which the director or officer
has been adjudged to be liable to the corporation. In addition, a director or
officer may not be indemnified with respect to any proceeding charging improper
personal benefit to the director or officer in which the director or officer was
adjudged to be liable on the basis that personal benefit was improperly
received. The termination of any proceeding by conviction, or upon a plea of
nolo contendere or its equivalent, or an entry of any order of probation prior
to judgment, creates a rebuttable presumption that the director or officer did
not meet the requisite standard of conduct required for indemnification to be
permitted. It is the position of the Commission that indemnification of
directors and officers for liabilities arising under the Securities Act is
against public policy and is unenforceable pursuant to Section 14 of the
Securities Act. The Agreement of Limited Partnership of the Operating
Partnership also provides for indemnification of the Company, or any director or
officer of the Company, in its
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capacity as general partner of the Partnership, from and against all losses,
claims, damages, liabilities, joint or several, expenses (including legal fees),
fines, settlements and other amounts incurred in connection with any actions
relating to the operations of the Operating Partnership as set forth in the
Operating Partnership Agreement. The Company entered into indemnification
agreements with each of its executive officers and directors. The
indemnification agreements require, among other things, that the Company
indemnify its officers and directors to the fullest extent permitted by the
MGCL, and advance to the officers and directors all related expenses, subject to
reimbursement if it is subsequently determined that indemnification is not
permitted. The Company must also indemnify and advance all expenses incurred by
officers and directors seeking to enforce their rights under the indemnification
agreements, and cover officers and directors under the Company's directors and
officers' liability insurance. Although the form of indemnification agreement
offers substantially the same scope of coverage afforded by provisions in the
Charter and the Bylaws, it provides greater assurance to directors and officers
that indemnification will be available, because, as a contract, it cannot be
modified unilaterally in the future by the Board of Directors or by the
stockholders to eliminate the rights it provides.
ITEM 16. EXHIBITS
See Exhibit Index attached hereto and incorporated by reference.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act 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 this 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 in such information in the Registration
Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby further 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
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions set forth or described in Item 15 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the 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 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 registered hereby, 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.
With respect to offerings of Warrants or rights, the undersigned Registrant
hereby undertakes to supplement the Prospectus, after the expiration of the
subscription period, to set forth the results of the subscription offer, the
transactions by the underwriters during the subscription period, the amount of
unsubscribed securities to be purchased by the underwriters, and the terms of
any subsequent reoffering thereof. If any public offering by the underwriters is
to be made on terms differing from those set forth on the cover page of the
applicable prospectus supplement, a post-effective amendment will be filed to
set forth the terms of such offering.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 4 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Newport Beach, State of California, on
this 20th day of April, 1998.
PACIFIC GULF PROPERTIES INC.
By: /s/ GLENN L. CARPENTER
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Glenn L. Carpenter
President and Chief Executive
Officer
POWERS OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 4 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ GLENN L. CARPENTER Chairman of the Board of April 20, 1998
- -------------------------------------------------------- Directors, President and
Glenn L. Carpenter Chief Executive Officer
(Principal Executive
Officer)
/s/ DONALD G. HERRMAN Executive Vice President, April 20, 1998
- -------------------------------------------------------- Secretary, and Chief
Donald G. Herrman Financial Officer
(Principal Financial and
Accounting Officer)
/s/ ROYCE B. MCKINLEY* Director April 20, 1998
- --------------------------------------------------------
Royce B. McKinley
/s/ CARL C. GREGORY III* Director April 20, 1998
- --------------------------------------------------------
Carl C. Gregory, III
/s/ PETER L. EPPINGA* Director April 20, 1998
- --------------------------------------------------------
Peter L. Eppinga
/s/ JOHN F. KOOKEN* Director April 20, 1998
- --------------------------------------------------------
John F. Kooken
/s/ ROBERT E. MORGAN* Director April 20, 1998
- --------------------------------------------------------
Robert E. Morgan
/s/ KEITH W. RENKEN* Director April 20, 1998
- --------------------------------------------------------
Keith W. Renken
Director April , 1998
- --------------------------------------------------------
James Quigley, the 3rd
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*By: /s/ GLENN L. CARPENTER
---------------------------------
Glenn L. Carpenter
Attorney-in-Fact
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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*1.1 Form of Underwriting Agreement relating to the Debt
Securities..................................................
*1.2 Form of Underwriting Agreement relating to the capital
stock.......................................................
**4.1 Form of Indenture (previously filed as an Exhibit to the
Registrant's Registration Statement on Form S-3
(Registration No. 333-23611) and incorporated herein by
reference)..................................................
*4.1.1 Form of Senior Indenture (Form of Senior Security included
therein)....................................................
*4.1.2 Form of Subordinated Indenture (Form of Subordinated
Security
included therein)...........................................
**4.2 Articles Supplementary related to the Class A Preferred
Stock (previously filed as an exhibit to the Registrant's
Current Report on Form 8-K/A filed January 17, 1997, and
incorporated herein by reference)...........................
**4.3 Articles Supplementary related to the Class B Preferred
Stock (previously filed as an exhibit to the Registrant's
Current Report on Form 8-K filed June 26, 1997, and
incorporated herein by reference)...........................
**5.1 Opinion of Piper & Marbury..................................
8.1 Opinion of Gibson, Dunn & Crutcher regarding certain tax
matters.....................................................
**12.1 Statement re: Computation of Ratio of Earnings to Fixed
Charges.....................................................
**23.1 Consent of Ernst & Young LLP................................
**23.2 Consent of Piper & Marbury (included in Exhibit 5.1)........
23.3 Consent of Gibson, Dunn & Crutcher (included in Exhibit
8.1)........................................................
**24 Powers of Attorney (included on signature page).............
*25.1 Statement of Eligibility and Qualification of Senior Trustee
under the Trust Indenture Act (to be filed in accordance
with Rule 305(b)(2) of the Trust Indenture Act of 1939).....
*25.2 Statement of Eligibility and Qualification of Subordinate
Trustee under the Trust Indenture Act (to be filed in
accordance with Rule 305(b)(2) of the Trust Indenture Act of
1939).......................................................
</TABLE>
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* To be filed by amendment when necessary or incorporated by reference as may
be required with the offering of Securities.
** Previously filed.
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EXHIBIT 8.1
April 10, 1998
(213) 229-7000 C 72764-00023
Pacific Gulf Properties Inc.
4220 Von Karman Avenue, Second Floor
Newport Beach, California 92660-2002
Re: Pacific Gulf Properties Inc.
Gentlemen:
We have acted as special tax counsel to Pacific Gulf Properties Inc., a
Maryland corporation (the "Company"), in connection with that certain
Registration Statement filed on Form S-3 with the Securities and Exchange
Commission (File No. 333-45597), as amended as of the date hereof (the
"Registration Statement"), covering the issuance of common stock, preferred
stock, warrants and debt securities of the Company with an aggregate offering
amount of up to $300,000,000, pursuant to the Prospectus forming a part thereof,
as amended as of the date hereof (the "Prospectus"). You have requested our
opinion concerning certain of the federal income tax considerations described in
the Prospectus.
In connection with rendering this opinion, we have made such legal and
factual examinations and inquiries, including an examination of originals or
copies certified or otherwise identified to our satisfaction of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate for purposes of this opinion. In our examination of such documents,
corporate records and other instruments, we have assumed the authenticity of
original documents, the conformity to the originals of any copies, the
genuineness of signatures, and the legal capacity of signatories. We have also
assumed that all parties to such documents have acted, and will act, in
accordance with the terms of such documents. With your permission we also have
relied upon and assumed the accuracy of representations made by the Company as
to factual matters relating to the Company's organization, operations, income,
assets, distributions and stock ownership, including those set forth in an
Officer's Certificate of even date herewith delivered to us for the purpose of
rendering this opinion, and the accuracy of the
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Pacific Gulf Properties Inc.
April 10, 1998
Page 2
representations and statements in the Registration Statement regarding the
Company and its operations.
We are opining herein only as to the effect of the federal income tax
laws of the United States and we express no opinion with respect to the
applicability or effect of other federal laws, the laws of any other
jurisdiction or as to any matters of municipal law or the laws of any other
local agencies within any state.
In light of the foregoing, it is our opinion that:
(1) Commencing with the Company's taxable year ending December 31, 1994,
the Company was organized in conformity with the requirements under the Internal
Revenue Code of 1986, as amended (the "Code"), for qualification as a real
estate investment trust and, based on the facts, assumptions and representations
of the Company referred to above, its method of operation has enabled, and its
proposed method of operation will enable, it to meet the requirements under the
Code, for qualification and taxation as a real estate investment trust.
(2) Based on the facts, assumptions and representations of the Company
referred to above, the information in the Base Prospectus under the caption
"Federal Income Tax Considerations," to the extent that it constitutes matters
of law, summaries of legal matters or legal conclusions, has been reviewed by us
and is accurate in all material respects.
This opinion is based on various statutory provisions, regulations
promulgated thereunder and interpretations thereof by the Internal Revenue
Service and the courts having jurisdiction over such matters, all as of the date
hereof. We caution that such authorities are subject to change and that any such
change may be applied retroactively. Also, any variation or difference in the
facts from the representations and other facts assumed or relied upon as
described above may affect the conclusions stated herein. Moreover, the
Company's qualification and taxation as a real estate investment trust depends
upon the Company's having met and continuing to meet -- through annual operating
results, distribution levels and diversity of stock ownership -- the various
qualification tests imposed under the Code, the results of which will not be
reviewed by Gibson, Dunn & Crutcher LLP. Accordingly, no assurance can be given
that the actual results of the Company's operations, distribution levels or
diversity of stock ownership for any one taxable year have satisfied or will
satisfy such requirements.
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Pacific Gulf Properties Inc.
April 10, 1998
Page 3
We hereby consent to the reference to this firm under the headings "Legal
Matters" and "Federal Income Tax Considerations" in the Prospectus and to the
filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP
