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As filed with the Securities and Exchange Commission on May 13, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GLENBOROUGH REALTY TRUST INCORPORATED
(Exact Name of Registrant as Specified in Its Governing Instruments)
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MARYLAND 94-3211970
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(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification Number)
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400 South El Camino Real, 11th Floor
San Mateo, California 94402
(650) 343-9300
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrar's Principal Executive Offices)
Frank Austin, Esq.
Senior Vice President, Glenborough Realty Trust Incorporated
400 South El Camino Real, 11th Floor
San Mateo, California 94402
(650) 343-9300
(Name, Address, Including Zip Code, and Telephone Number, Including Area
Code, of Agent for Service)
COPIES TO:
Stephen J. Schrader, Esq.
Justin L. Bastian, Esq.
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, California 94304
(650) 813-5600
APPROXIMATE DATE OF COMMENCEMENT
OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective
date of this Registration Statement.
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 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. [X] 333-49845
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act of 1933, 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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CALCULATION OF REGISTRATION FEE
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TITLE OF SHARES TO BE REGISTERED AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE PROPOSED MAXIMUM AGGREGATE AMOUNT OF
REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE(1)
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Common Stock, $.001
par value .................. 33,198 shares $30.125(1) $1,000,090(1) $295
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) based on the average of the high and low
reported sales prices on the New York Stock Exchange on May 11, 1998.
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INCORPORATION BY REFERENCE
The contents of the Registration Statement on Form S-3, as amended (File
No. 333-49845) filed by Glenborough Realty Trust Incorporated and declared
effective March 21, 1998, are hereby incorporated by reference.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Mateo, State of California on May 12, 1998.
GLENBOROUGH REALTY TRUST
INCORPORATED
By: /s/ Robert Batinovich
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Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed by the following persons in
the capacities and on the dates indicated:
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SIGNATURE TITLE DATE
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/s/ Robert Batinovich Chairman and Chief Executive Officer May 12, 1998
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/s/ Andrew Batinovich Director, President and Chief Operating Officer May 12, 1998
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/s/ Stephen Saul Executive Vice President and Chief Financial Officer May 12, 1998
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/s/ Terri Garnick Senior Vice President and Chief Accounting Officer May 12, 1998
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Director May __, 1998
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/s/ Patrick Foley Director May 12, 1998
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Director May __, 1998
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/s/ Laura Wallace Director May 12, 1998
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EXHIBIT INDEX
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3.1 - Articles of Amendment and Restatement of Articles of Incorporation of the Registrant (incorporated by reference
to Exhibit 3.02 to Registrant's Registration Statement on Form S-11 (File No. 333-09411))
3.2 - Bylaws of the Registrant (incorporated by reference to Exhibit 3.02 to Registrant's Annual Report on Form 10-K
for the year ended December 31, 1997.
3.3 - Articles Supplementary relating to the Series A Preferred Stock (incorporated by reference to Registrant's
Annual Report on Form 10-K for the year ended December 31, 1997.
5.1 - Opinion of Morrison & Foerster LLP
8.1 - Opinion of Morrison & Foerster LLP relating to certain tax matters
23.1 - Consent of Arthur Andersen LLP, independent public accountants
23.2 - Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
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EXHIBIT 5.1
May 13, 1998
Glenborough Realty Trust Incorporated
400 South El Camino Real, Suite 1100
San Mateo, CA 94402-1708
Ladies and Gentlemen:
We are acting as counsel to Glenborough Realty Trust Incorporated, a
Maryland corporation (the "Company"), in connection with the offer and sale from
time to time by the holders of up to 33,198 shares (the "Shares") of Common
Stock of the Company, par value $.001 per share (the "Common Stock") previously
issued by the Company in connection with the acquisition of a real estate
portfolio. The Shares are the subject of a Registration Statement (the
"Registration Statement") filed by the Company on Form S-3 under the Securities
Act of 1933, as amended (the "Act").
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken by the Company in connection with the
authorization and issuance of the Shares. In addition, 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 instruments, as we have deemed necessary or appropriate
for purposes of this opinion.
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Glenborough Realty Trust Incorporated
May 13, 1998
Page 2
Based upon and subject to the foregoing, it is our opinion that the
Shares being offered for resale by the Selling Stockholders pursuant to the
Registration Statement will, when sold thereunder, be legally issued, fully
paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the reference to us under the heading "Legal
Matters" in the Registration Statement, the Prospectus constituting a part
thereof and any amendments thereto.
Very truly yours,
/s/ Morrison & Foerster LLP
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EXHIBIT 8.1
May 13, 1998
Glenborough Realty Trust Incorporated
400 South El Camino Real, 11th Floor
San Mateo, California 94402
Ladies and Gentlemen:
We have acted as special tax counsel to Glenborough Realty Trust
Incorporated, a Maryland corporation (the "Company") in connection with the
offer and sale from time to time by the holders of up to 33,198 shares (the
"Shares") of Common Stock of the Company, par value $.001 per share (the "Common
Stock") issued by the Company in connection with the acquisition of a real
estate portfolio. The Shares are the subject of a Registration Statement (the
"Registration Statement") filed by the Company on Form S-3 with the Securities
and Exchange Commission ("SEC") on May 13, 1998, under the Securities Act of
1933 (the "Act"). Capitalized terms not defined herein shall have the meanings
ascribed to them in the certificate (or incorporated therein by reference),
dated May 13, 1998 (the "Certificate"), delivered to Morrison & Foerster LLP
which provides certain representations of fact by the Company relevant to this
opinion.
You have requested our opinion as to whether the Company has operated in
a manner to qualify it as a real estate investment trust ("REIT"), within the
meaning of Section 856(a) of the Internal Revenue Code of 1986, as amended (the
"Code"). This opinion is solely for the benefit of the Company and may not be
relied upon by, nor may copies be delivered to, any other person without our
prior written consent.
In our capacity as tax counsel to the Company and for purposes of
rendering this opinion, we have examined and relied upon the following, with
your consent: (i) the Certificate; (ii) the Registration Statement and (iii)
such other documents we have considered relevant to our analysis. In our
examination of such documents, we have assumed the authenticity of original
documents, the accuracy of 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.
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Glenborough Realty Trust Incorporated
May 13, 1998
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Furthermore, our opinion is based on (a) our understanding of the facts
as represented to us in the Certificate and (b) the assumption that (I) the
Company is operated and will continue to be operated in the manner described in
the Certificate, (II) the facts contained in the Registration Statement are true
and complete in all material respects, and (III) all representations of fact
contained in the Certificate are true and complete in all material respects. We
have not undertaken any independent inquiry into or verification of these facts
either in the course of our representation of the Company or for the purpose of
rendering this opinion. While we have reviewed all representations made to us to
determine their reasonableness, we have no assurance that they are or will
ultimately prove to be accurate.
We also note that the tax consequences addressed herein depend upon the
actual occurrence of events in the future, which events may or may not be
consistent with any representations made to us for purposes of this opinion. In
particular, qualification and taxation of the Company as a REIT under the Code
depends upon the Company's ability to satisfy or maintain on a continuing basis
certain distribution levels, diversity of stock ownership, and the various
qualification tests imposed by the Code. To the extent that the facts differ
from those represented to us or assumed by us herein, our opinion should not be
relied upon.
Our opinion herein is based on existing law as contained in the Code,
the Treasury Regulations promulgated thereunder, administrative pronouncements
of the Internal Revenue Service ("IRS") and court decisions as of the date
hereof. The provisions of the Code and the Treasury Regulations, IRS
administrative pronouncements and case law upon which this opinion is based
could be changed at any time, perhaps with retroactive effect. In addition, some
of the issues under existing law that could significantly affect our opinion
have not yet been authoritatively addressed by the IRS or the courts, and our
opinion is not binding on the IRS or the courts. Hence, there can be no
assurance that the IRS will not challenge or that the courts will agree with our
conclusions.
Based upon, and subject to, the foregoing and the next paragraph below,
we are of the opinion that, commencing with the Company's taxable year ending
December 31, 1996 through its taxable year ending December 31, 1997, the Company
has been organized in conformity with the requirements for qualification as a
REIT under the Code and its method of operation has enabled it to so qualify,
and if it operates after December 31, 1997 in the same manner as it has prior to
that date, it will continue to so qualify.
We undertake no obligation to update this opinion, or to ascertain after
the date hereof whether circumstances occurring after such date may affect the
conclusions set forth
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Glenborough Realty Trust Incorporated
May 13, 1998
Page 3
herein. We express no opinion as to matters governed by any laws other than the
Code, the Treasury Regulations, published administrative announcements and
rulings of the IRS and case law.
Very truly yours,
/s/ Morrison & Foerster LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the reference to our firm under the caption
"Experts" and to the use of our reports dated January 21, 1998 with respect to
the consolidated financial statements of Glenborough Realty Trust Incorporated,
the combined financial statements of the GRT Predecessor Entities, the
consolidated financial statements of Glenborough Hotel Group, and related
financial statement schedules included on Form 10-K of Glenborough Realty Trust
Incorporated for the year ended December 31, 1997, incorporated by reference
into this Registration Statement of Glenborough Realty Trust Incorporated.
San Francisco, California ARTHUR ANDERSEN LLP
May 11, 1998
