AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 27, 2004
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
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GOVERNMENT PROPERTIES TRUST, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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MARYLAND 20-0611663
(State of incorporation) (I.R.S. Employer Identification No.)
10250 REGENCY CIRCLE, SUITE 100
OMAHA, NEBRASKA 68114
(402) 391-0010
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
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2003 EQUITY INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
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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 AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
DAVID E. GARDELS JOHN D. ELLSWORTH
JAMES C. CREIGH LIEBEN, WHITTED, HOUGHTON, SLOWIACZEK &
BLACKWELL SANDERS PEPER MARTIN LLP CAVANAGH, P.C., L.L.O.
1620 DODGE STREET, SUITE 2100 2027 DODGE STREET, SUITE 100
OMAHA, NEBRASKA 68102 OMAHA, NEBRASKA 68102
(402) 964-5000 (402) 344-4000
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Proposed maximum Proposed maximum
Title of Securities to Amount to be offering price per aggregate offering Amount of
be registered registered share price registration fee
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Common Stock 1,000,000 shares $13.625(1) $13,625,000(1) $1727
(1) Calculated pursuant to Rule 457(c) based on the average of the high and low
sales price for the common stock as reported by the NYSE on February 25, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document or documents containing the information specified in Part I
are not required to be filed with the Securities and Exchange Commission (the
"Commission") as part of this Registration Statement on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Government Properties Trust, Inc. (the
"Company") with the Commission are incorporated by reference into this
Registration Statement:
(1) The Company's prospectus filed pursuant to Rule 424(b) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as filed with the Commission on January
27, 2004;
(2) The description of the Company's common stock contained in
the Company's Registration Statement on Form 8-A filed
with the Commission on January 22, 2004, including any
amendment or report filed for the purpose of updating such
description; and
(3) All reports filed by the Company pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date hereof.
Any statement contained or incorporated by reference in this document
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in a subsequently filed
document modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Maryland General Corporation Law (the "MGCL") requires a corporation
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
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:
- 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; or
- 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
contendere 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. The Company's charter
contains such a provision which eliminates such liability to the maximum extent
permitted by Maryland law.
The Company's bylaws obligate the Company, 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, the Company's bylaws permit the Company, 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 other 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 the Company's request as a
director, officer, employee or agent of another corporation or
entity.
The Company's bylaws also permit the Company to indemnify and advance
expenses to any person who served a predecessor of the Company in any of the
capacities described above and to any employee or agent of the Company or a
predecessor of the Company.
The Company has entered into indemnification agreements with its
directors and executive officers which require, among other things, that it
indemnify its 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, the Company 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
Company's directors and executive officers and such other persons that
indemnification will be available.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION
NUMBER
4.1 Government Properties Trust 2003 Equity Incentive Plan
(incorporated by reference to exhibit 10.1 to the Company's
registration statement on Form S-11 (file no. 333-109565))
5.1 Opinion of Miles & Stockbridge P.C.
23.1 Consent of Miles & Stockbridge P.C. (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney (included on Signature Page of this
Registration Statement)
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;
(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 this Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in the 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 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3, and 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
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
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 an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the 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.
(c) 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 foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities 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 the Securities Act and will be governed by the final
adjudication of such issue.
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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, hereunto duly
authorized, in the City of Omaha, State of Nebraska, on this 27th day of
February, 2004.
GOVERNMENT PROPERTIES TRUST, INC.
By: /s/ THOMAS D. PESCHIO
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Name: Thomas D. Peschio
Title: President and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Thomas D. Peschio and Jerry D. Bringard,
and each of them, as his or her true and lawful attorney-in-fact with full power
of substitution and resubstitution to sign in his or her name, place and stead,
in any and all capacities to do any and all things and execute any and all
instruments that such attorney may deem necessary or advisable under the
Securities Act of 1933, and any rules, regulations and requirements of the
Securities and Exchange Commission, including specifically, but without limiting
the generality of the foregoing, the power and authority to sign his or her name
in his or her respective capacity as a member of the Board of Directors or
officer of the registrant, this registration statement, any and all amendments
(including post-effective amendments) to this registration statement and any
other documents filed with the Securities and Exchange Commission, as fully for
all intents and purposes as he or she might or could do in person, and hereby
ratifies and confirms all said attorneys-in-fact and agents, each acting alone,
and his or her substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/ THOMAS D. PESCHIO President, Chief Executive Officer February 27, 2004
--------------------- and Director
Thomas D. Peschio
/s/ NANCY D. OLSON Chief Financial Officer and Treasurer February 27, 2004
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Nancy D. Olson
/s/ JERRY D. BRINGARD Chairman of the Board of Directors February 27, 2004
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Jerry D. Bringard
/s/ ROBERT M. AMES Director February 27, 2004
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Robert M. Ames
/s/ SPENCER I. BROWNE Director February 27, 2004
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Spencer I. Browne
/s/ PHILIP S. COTTONE Director February 27, 2004
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Philip S. Cottone
/s/ ROBERT A. PECK Director February 27, 2004
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Robert A. Peck
/s/ RICHARD H. SCHWACHTER Director February 27, 2004
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Richard H. Schwachter
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 Government Properties Trust 2003 Equity Incentive Plan
(incorporated by reference to exhibit 10.1 to the Company's
registration statement on Form S-11 (file no. 333-109565))
5.1 Opinion of Miles & Stockbridge P.C.
23.1 Consent of Miles & Stockbridge P.C. (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney (included on Signature Page of this
Registration Statement)