AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 13, 2004
REGISTRATION NO. 333-109565
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 4
TO
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GOVERNMENT PROPERTIES TRUST, INC.
(Exact name of registrant as specified in governing instruments)
10250 REGENCY CIRCLE, SUITE 100
OMAHA, NEBRASKA 68114
(402) 391-0010
(Address, including zip code, and telephone number
including area code, of registrant's principal executive offices)
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THOMAS D. PESCHIO
PRESIDENT AND CHIEF EXECUTIVE OFFICER
GOVERNMENT PROPERTIES TRUST, INC.
10250 REGENCY CIRCLE, SUITE 100
OMAHA, NEBRASKA 68114
(402) 391-0010
(Name, address, including zip, and telephone number, including area code,
of agent for service)
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COPIES TO:
DAVID E. GARDELS JOHN D. ELLSWORTH WAYNE D. BOBERG
JAMES C. CREIGH MICHAEL C. PALLESEN BRENDAN P. HEAD
BLACKWELL SANDERS PEPER MARTIN LLP LIEBEN, WHITTED, HOUGHTON, WINSTON & STRAWN LLP
1620 DODGE STREET, SUITE 2100 SLOWIACZEK & 35 WEST WACKER DRIVE
OMAHA, NEBRASKA 68102 CAVANAGH, P.C., L.L.O. CHICAGO, ILLINOIS 60601
(402) 964-5000 2027 DODGE STREET, SUITE 100 (312) 558-5600
OMAHA, NEBRASKA 68102
(402) 344-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the effective date of this registration statement.
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 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,
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 DATES AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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EXPLANATORY NOTE
This Amendment No. 4 is being filed solely for the purpose of filing
additional exhibits.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 31. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table itemizes the expenses incurred by us in connection with
the issuance and registration of the securities being registered hereunder. All
amounts shown are estimates except the SEC registration fee.
SEC Registration Fee........................................ $13,025
NYSE Listing Fee............................................ *
Printing and Engraving Expenses............................. *
Legal Fees and Expenses (other than Blue Sky)............... *
Reimbursement of Underwriter Expenses....................... *
Accounting and Fees and Expenses............................ *
Blue Sky Fees and Expenses.................................. *
Miscellaneous............................................... *
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Total..................................................... $ *
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* To be filed by amendment.
We will pay all of the costs identified above.
ITEM 32. SALES TO SPECIAL PARTIES
None.
ITEM 33. RECENT SALES OF UNREGISTERED SECURITIES.
Genesis Financial Group, Inc. purchased 20,346 shares of our common stock
(10,346 shares on August 30, 2002 and 10,000 shares on January 23, 2001) at $10
per share, for an aggregate purchase price of approximately $203,460. These
shares were offered and sold in reliance on Section 4(2) of the Securities Act
because the offers and sales were made to a single sophisticated, accredited
investor and did not involve any general solicitation or advertising. No
underwriters or placement agents were engaged in connection with these
transactions.
ITEM 34. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Maryland General Corporation Law (the "MGCL") requires a corporation
(unless its charter provides otherwise, which our 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 or she is made a party
by reason of his or her service in that capacity. The MGCL permits a corporation
to indemnify its present and former directors and officers, among others,
against judgments, penalties, fines, settlements and reasonable expenses,
including attorney's fees, actually incurred by them in connection with any
proceeding to which they may be made a party by reason of their service in those
capacities unless it is established that:
- an act or omission of the director or officer was material to the matter
giving rise to the proceeding and
- was committed in bad faith; or
- was the result of active and deliberate dishonesty;
II-1
- the director or officer actually received an improper personal benefit in
money, property or services; or
- in the case of any criminal proceeding, the director or officer had
reasonable cause to believe that the act or omission was unlawful.
However, under the MGCL, a Maryland corporation may not indemnify for an adverse
judgment in a suit by or in the right of the corporation or for a judgment of
liability on the basis that personal benefit was improperly received, unless in
either case a court orders indemnification and then only for expenses. The
termination of any proceeding by conviction or upon a plea of nolo contender a
or its equivalent or an entry of an 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 permitted indemnification. The termination of
any proceeding by judgment, order or settlement, however, does not create a
presumption that the director or officer did not meet the requisite standard of
conduct for permitted indemnification.
In addition, the MGCL permits a corporation to advance reasonable expenses
to a director or officer upon the corporation's receipt of:
- 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 corporation; and
- a written undertaking by the director or on the director's behalf to
repay the amount paid or reimbursed by the corporation if it is
ultimately determined that the director did not meet the standard of
conduct.
The MGCL 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 liability
resulting from actual receipt of an improper benefit or profit in money,
property or services or active and deliberate dishonesty established by a final
judgment as being material to the cause of action. Our charter contains such a
provision which eliminates such liability to the maximum extent permitted by
Maryland law.
Our bylaws obligate us, to the fullest extent permitted by Maryland law, to
indemnify any director or former director and to pay or reimburse, in advance of
final disposition of a proceeding, reasonable expenses incurred by a director or
former director, if such person is or is threatened to be made a party to a
proceeding by reason of his or her position as a director. In addition, our
bylaws permit us, to the fullest extent permitted by Maryland law, to similarly
provide indemnification and reimbursement of reasonable expenses to:
- any present or former officer, employee or agent who is made a party to
the proceeding by reason of his or her service in that capacity; or
- any person who serves or has served at our request as a director,
officer, employee or agent of another corporation or entity.
Our bylaws also permit us to indemnify and advance expenses to any person
who served a predecessor of ours in any of the capacities described above and to
any employee or agent of our company or a predecessor of our company.
We intend to enter into indemnification agreements with our directors and
executive officers which will require, among other things, that we indemnify our
directors to the fullest extent permitted by Maryland law, and advance to such
persons all related expenses, subject to reimbursement if it is subsequently
determined that indemnification is not permitted. Under these agreements, we
must also indemnify and advance all expenses incurred by such persons seeking to
enforce their rights under the indemnification agreement. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by law, it provides greater assurance to the registrant's directors and
executive officers and such other persons that indemnification will be
available.
Insofar as the foregoing provisions permit indemnification of directors,
officers or persons controlling us for liability arising under the Securities
Act of 1933, as amended, we have been informed that in the opinion of the
Securities and Exchange Commission, this indemnification is against public
policy as expressed in the Securities Act of 1933, as amended and is therefore
unenforceable.
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We intend to carry liability insurance for the benefit of our directors and
executive. This insurance will generally cover claims made against our directors
and officers based on their actions and omissions in connection with the
carrying out of our business affairs, including claims based on state or federal
securities laws.
ITEM 35. TREATMENT OF PROCEEDS FROM STOCK BEING REGISTERED.
None
ITEM 36. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements. See Index to Financial Statements
(b) Exhibits. The following exhibits are filed as part of this
registration statement on Form S-11:
EXHIBIT INDEX
EXHIBIT DESCRIPTION OF DOCUMENT
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1.1* Underwriting Agreement
3.1** Charter
3.2** Bylaws
4.1** Form of Common Stock Certificate
5.1** Opinion of Miles & Stockbridge P.C. with respect to legality
of the shares being registered
8.1** Opinion of with Blackwell Sanders Peper Martin LLP with
respect to tax matters
10.1** 2003 Equity Incentive Plan
10.2* Form of Indemnification Agreement
10.3** Chief Executive Officer Employment Agreement
10.4** Amended and Restated Omnibus Services Agreement, dated June
2, 2003, with Genesis Financial Group, Inc.
10.5** Property Acquisition Services Agreement, dated September 30,
2003, with Genesis Financial Group, Inc.
10.6 Commitment letter with respect to $50 million revolving
credit facility
10.7 Letter of Intent -- College Park, Maryland property
10.8 Purchase and Sale Agreement -- Parkersburg, West Virginia
property
10.9 Letter of Intent -- Baton Rouge, Louisiana property
10.10 Letter of Intent -- Pittsburgh, Pennsylvania property
10.11 Purchase and Sale Agreement -- Mineral Wells, West Virginia
property
10.12 Purchase and Sale Agreement -- Harlingen, Texas INS
properties
10.13 Purchaser and Sale Agreement -- Harlingen, Texas USBP
property
10.14* Mortgage Banking Services Agreement
16.1** Letter regarding change in certifying accountant
16.2** Letter regarding change in certifying accountant
23.1** Consent of Miles & Stockbridge, P.C. (included in Exhibit
5.1)
23.2** Consent of Blackwell Sanders Peper Martin LLP (included in
Exhibit 8.1)
23.3** Consent of Ernst & Young LLP
23.4** Consent of Zwick & Steinberger, P.L.L.C.
24.1** Power of Attorney (included in the signature page to the
Registration Statement)
24.2** Power of Attorney of Philip S. Cottone
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* To be filed by amendment
** Previously filed
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ITEM 37. UNDERTAKINGS.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, as amended, 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, as amended, 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.
The undersigned registrant hereby further undertakes to provide to the
underwriters at the closing specified in the underwriting agreements
certificates in such denominations and registered in such names as required by
the underwriters to permit prompt delivery to each purchaser.
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SIGNATURES AND POWERS OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, the
undersigned registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-11 and has duly caused
this amendment number 4 to be signed on its behalf by the undersigned, thereunto
duly authorized, in Omaha, Nebraska, on January 12, 2004.
GOVERNMENT PROPERTIES, TRUST, INC.
By: /s/ THOMAS D. PESCHIO
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Thomas D. Peschio
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment number 4 has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ THOMAS D. PESCHIO President, Chief Executive January 12, 2004
-------------------------------------- Officer and Director
Thomas D. Peschio
* Chief Financial Officer and January 12, 2004
-------------------------------------- Treasurer
Nancy D. Olson
* Chairman of the Board of January 12, 2004
-------------------------------------- Directors
Jerry D. Bringard
* Director January 12, 2004
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Robert M. Ames
* Director January 12, 2004
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Philip S. Cottone
* Director January 12, 2004
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Robert A. Peck
* Director January 12, 2004
--------------------------------------
Richard H. Schwachter
*By: /s/ THOMAS D. PESCHIO
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Thomas D. Peschio
Attorney-in-Fact
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EXHIBIT INDEX
EXHIBIT DESCRIPTION OF DOCUMENT
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1.1* Underwriting Agreement
3.1** Charter
3.2** Bylaws
4.1** Form of Common Stock Certificate
5.1** Opinion of Miles & Stockbridge P.C. with respect to legality
of the shares being registered
8.1** Opinion of with Blackwell Sanders Peper Martin LLP with
respect to tax matters
10.1** 2003 Equity Incentive Plan
10.2* Form of Indemnification Agreement
10.3** Chief Executive Officer Employment Agreement
10.4** Amended and Restated Omnibus Services Agreement, dated June
2, 2003, with Genesis Financial Group, Inc.
10.5** Property Acquisition Services Agreement, dated September 30,
2003, with Genesis Financial Group, Inc.
10.6 Commitment letter with respect to $50 million revolving
credit facility
10.7 Letter of Intent -- College Park, Maryland property
10.8 Purchase and Sale Agreement -- Parkersburg, West Virginia
property
10.9 Letter of Intent -- Baton Rouge, Louisiana property
10.10 Letter of Intent -- Pittsburgh, Pennsylvania property
10.11 Purchase and Sale Agreement -- Mineral Wells, West Virginia
property
10.12 Purchase and Sale Agreement -- Harlingen, Texas INS
properties
10.13 Purchaser and Sale Agreement -- Harlingen, Texas USBP
property
10.14* Mortgage Banking Services Agreement
16.1** Letter regarding change in certifying accountant
16.2** Letter regarding change in certifying accountant
23.1** Consent of Miles & Stockbridge P.C. (included in Exhibit
5.1)
23.2** Consent of Blackwell Sanders Peper Martin LLP (included in
Exhibit 8.1)
23.3** Consent of Ernst & Young LLP
23.4** Consent of Zwick & Steinberger, P.L.L.C.
24.1** Power of Attorney (included in the signature page to the
Registration Statement)
24.2** Power of Attorney of Philip S. Cottone
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* To be filed by amendment
** Previously filed