As filed with the Securities and Exchange Commission on May 27, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GLENBOROUGH REALTY TRUST INCORPORATED
(Exact Name of Registrant as Specified in Its Governing Instruments)
Maryland 94-3211970
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
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)
Options granted pursuant to agreements made between
Glenborough Realty Trust Incorporated and certain of its employees
(Full Title of Plan)
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
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CALCULATION OF REGISTRATION FEE
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Title of Shares to be Amount to be Proposed Maximum Proposed Maximum Amount of Registration
Registered Registered (1) Aggregate Price Per Share Aggregate Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, $.001
par value .............. 1,000,000 shares $18.40625 (2) $18,406,250(2) $5,429.84
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(1) Plus such indeterminate number of shares as may be issued resulting
from stock splits, stock dividends or similar transactions in
accordance with Rule 416 under the Securities Act of 1933.
(2) 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 25, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part 1 of Form S-8
(plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Certain Documents By Reference
The Commission allows us to "incorporate by reference" the information we
file with the Commission, which means that we can disclose important information
to you by referring to those documents. The information incorporated by
reference is an important part of this prospectus. Any statement contained in a
document which is incorporated by reference in this prospectus is automatically
updated and superseded if information contained in this prospectus, or
information that we later file with the Commission, modifies or replaces that
information.
The documents listed below have been filed by us under the Exchange Act with
the Commission and are incorporated herein by reference:
a. Our Annual Report on Form 10-K for the year ended December 31, 1998;
b. Our Quarterly Report on Form 10-Q for the quarterly period ended March
31, 1999;
c. Our Current Reports on Form 8-K filed with the Commission on January 27,
1999 and April 23, 1999;
d. The description of our Common Stock, par value $0.001 per share,
contained in our Registration Statement on Form 8-A (File No. 1-14162).
In addition, we incorporate by reference all documents filed by us with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 after the date of this prospectus.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
The Maryland GCL permits a Maryland Corporation to include in its charter a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages except for (i) actual receipt
of an improper benefit or profit in money, property or services or (ii) active
and deliberate dishonesty established by a final judgment as being material to
the cause of action. The Charter contains such a provision which limits such
liability to the maximum extent permitted by the Maryland GCL.
The Charter authorizes the Company to obligate itself to indemnify its
present and former officers and directors and to pay or reimburse reasonable
expenses for those individuals in advance of the final disposition of a
proceeding to the maximum extent permitted from time to time by the laws of
Maryland. The Bylaws of the Company obligate it to indemnify, and advance
expenses to present, former and proposed directors and officers to the maximum
extent permitted by Maryland law. The Maryland GCL permits a corporation to
indemnify its present and former directors 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 director 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 director or
officer actually received an improper personal benefit in money, property or
services, or (c) in the case of any criminal proceeding, the director or officer
had a reasonable cause to believe that the act or omission was unlawful.
However, a corporation may not indemnify for an adverse judgment in a suit by or
in the right of the corporation. In addition, the Maryland GCL requires the
Company, as conditions to advancing expenses, to obtain (i) a written
affirmation by the director or officer of his good-faith belief that he has met
the standard of conduct necessary for indemnification by the Company as
authorized by the applicable Bylaws and (ii) a written statement by him or on
his behalf to repay the amount paid or reimbursed by the Company if it shall
ultimately be determined that the standard of conduct was not met. The Bylaws of
the Company also permit the Company to provide indemnification and to advance
expenses to a present or former director or officer who served a predecessor of
the Company in that capacity, and to any employee or agent of the Company, or a
predecessor of the Company. Finally, the Maryland GCL requires a corporation
(unless its charter provides otherwise, which the Company's Charter does not) to
indemnify a director or officer who has been successful on the merits, or
otherwise, in the defense of any proceeding to which he is made a party by
reason of service in that capacity.
The Company has entered into indemnification agreements with each of its
directors and executive officers to provide them with indemnification to the
full extent permitted by the Charter and Bylaws of Company.
The Company has obtained an insurance policy to provide liability coverage
for directors and officers of Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
The exhibits set forth in the Exhibit Index herein are incorporated by
reference into this Item 8.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
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(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; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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 herein, 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 these securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby further undertakes that, for the purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual reports pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, when 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 to 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.
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 described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such 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 such 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, 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 27, 1999.
GLENBOROUGH REALTY TRUST
INCORPORATED
By: /s/ Robert Batinovich
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Robert Batinovich, Chairman and
Chief Executive Officer
POWER OF ATTORNEY
The undersigned hereby constitutes and appoints Robert Batinovich, Andrew
Batinovich, Stephen Saul and Frank E. Austin as his/her true and lawful
attorneys-in-fact and agents, jointly and severally, with full power of
substitution and resubstitution, for and in his/her stead, in any and all
capacities, to sign on his/her behalf the Registration Statement on Form S-8 and
to execute any amendments thereto (including post-effective amendments) or
certificates that may be required in connection with this Registration
Statement, and to file the same, with all exhibits thereto, and all other
documents in connection therewith, with the Securities and Exchange Commission
and granting unto said attorneys-in-fact and agents, jointly and severally, the
full power and authority to do and perform each and every act and thing
necessary or advisable to all intents and purposes as he/she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, jointly and severally, or his/her 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 on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated:
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<S> <C> <C>
Signature Title Date
/s/ Robert Batinovich Chairman and Chief Executive Officer May 27, 1999
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Robert Batinovich
/s/ Andrew Batinovich Director, President and Chief Operating Officer May 27, 1999
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Andrew Batinovich
/s/ Stephen Saul Executive Vice President and Chief Financial Officer May 27, 1999
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Stephen Saul
/s/ Terri Garnick Senior Vice President and Chief Accounting Officer May 27, 1999
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Terri Garnick
/s/ Richard C. Blum Director May 27, 1999
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Richard C. Blum
/s/ Patrick Foley Director May 27, 1999
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Patrick Foley
/s/ Richard A. Magnuson Director May 27, 1999
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Richard A Magnuson
/s/ Laura Wallace Director May 27, 1999
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Laura Wallace
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EXHIBIT INDEX
Exhibit
Number Description
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5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Arthur Andersen LLP, independent public
accountants
23.2 Consent of Morrison & Foerster LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page hereto)
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Exhibit 5.1
May 27, 1999
Glenborough Realty Trust Incorporated
400 South El Camino Real, Suite 1100
San Mateo, CA 94402-1708
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 to
be filed by Glenborough Realty Trust Incorporated, a Maryland corporation (the
"Company") with the Securities and Exchange Commission (the "SEC") in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 1,000,000 shares of the Company's Common Stock, $.001 par value
(the "Stock") which will be issuable pursuant to the grant (the "Grant")
approved by the Company's shareholders at the Company's 1999 Annual Shareholders
Meeting.
In our capacity as your counsel in connection with such registration, we are
familiar with the proceedings taken by you in connection with the adoption of
the Grant and the authorization of the issuance of the shares of Common Stock
described above (the "Plan Shares") and such documents as we have deemed
necessary or appropriate for purposes of this opinion.
Based upon and subject to the foregoing, it is our opinion that the Plan
Shares, when issued and outstanding pursuant to the terms of the Plan, will be
legally issued, fully paid, and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/Morrison & Foerster LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
March 15, 1999 on the consolidated financial statements of Glenborough Realty
Trust Incorporated included in the Form 10-K of Glenborough Realty Trust
Incorporated for the year ended December 31, 1998 and to all references to our
Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
San Francisco, California
May 27, 1999
