As filed with the Securities and Exchange Commission on November 1, 2004.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
CAPITAL TRUST, INC.
(Exact name of issuer as specified in its charter)
Maryland 94-6181186
(State of Incorporation) (IRS Employer Identification Number)
410 Park Avenue, 14th Floor New York, NY 10022
(Address of Principal Executive Offices) (Zip Code)
CAPITAL TRUST, INC.
2004 LONG-TERM INCENTIVE PLAN
(Full title of the Plan)
John R. Klopp
Chief Executive Officer
Capital Trust, Inc.
410 Park Avenue, 14th Floor
New York, NY 10022
(212) 655-0220
(Name, address and telephone number of agent for service)
copy to:
Michael L. Zuppone, Esq.
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, NY 10022
(212) 318-6000
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
registered registered (1) Offering Price Per Unit (2) Aggregate Offering Price Registration Fee
class A common stock, par value 1,000,000 $28.82 $28,820,000 $3,651.49
$0.01 per share
(1) Registered herein are 1,000,000 shares of the Registrant's class A common
stock, par value $0.01 per share, of which 218,818 shares of class A common
stock are subject to an outstanding restricted share award that was issued
pursuant to the Registrant's 2004 Long-Term Incentive Plan, and the remaining
781,182 shares of class A common stock which may be issued pursuant to future
awards under such plan. Also registered hereunder are such additional number of
shares of class A common stock, presently indeterminable, as may be necessary to
satisfy the
anti-dilution provisions of the plan to which this Registration Statement
relates in accordance with Rule 416 under the Securities Act of 1933, as amended
(the "Securities Act").
(2) Calculated pursuant to paragraphs (c) and (h) of Rule 457 under the
Securities Act, the proposed maximum offering price per share of the shares
being registered is estimated solely for the purpose of determining the
registration fee, based upon the average of the high and low sales prices per
share of the Registrant's class A common stock ($28.82 per share), as reported
on the New York Stock Exchange on October 27, 2004, which is within five
business days prior to the date of filing of this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
The documents containing the information specified in Item 1 of Part I
of this Registration Statement will be sent or given to participants who receive
awards under the Capital Trust, Inc. 2004 Long-Term Incentive Plan (the "Plan")
and are not being filed with, or included in, this Registration Statement in
accordance with Rule 428 under the Securities Act.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in Item 2 of Part I
of this Registration Statement will be sent or given free of charge to
participants who receive awards under the Plan and are not being filed with, or
included in, this Registration Statement in accordance with Rule 428 under the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been heretofore filed with the
Commission by Capital Trust, Inc. (the "Registrant"), are incorporated by
reference in this Registration Statement:
(i) the Registrant's annual report on Form 10-K for the fiscal
year ended December 31, 2003, as filed with the Commission on
March 3, 2004, as amended by the amended annual report on Form
10-K/A, as filed with the Commission on April 29, 2004,
respectively (SEC File No. 001-14788);
(ii) the Registrant's quarterly report on Form 10-Q for the quarter
ended March 31, 2004, as filed with the Commission on May 12,
2004 (SEC File No. 001-14788);
2
(iii) the Registrant's quarterly report on Form 10-Q for the quarter
ended June 30, 2004, as filed with the Commission on August
16, 2004 (SEC File No. 001-14788);
(iv) the Registrant's current reports on Form 8-K, as filed with
the Commission on March 9, 2004, March 10, 2004, March 16,
2004, May 11, 2004, May 17, 2004, May 27, 2004, June 14, 2004,
June 21, 2004, July 21, 2004, July 23, 2004, July 29, 2004 and
August 19, 2004 (SEC File No. 001-14788); and
(v) the description of the Registrant's class A common stock
contained in the Registrant's current report on Form 8-K, as
filed with the Commission on July 10, 2003 (SEC File No.
001-14788), including any amendment or report filed for the
purpose of updating that description.
The information incorporated by reference is considered to be part of
this Registration Statement, and information that the Registrant files later
with the Commission will automatically update and supersede this information.
All documents the Registrant subsequently files with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of the filing of
such documents.
Notwithstanding the foregoing, information furnished under Items 9 and
12 of the Registrant's current reports on Form 8-K, including the related
exhibits, is not incorporated by reference in 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
Maryland law permits a Maryland corporation to include in its charter a
provision limiting the liability of its directors and officers to the
corporation and its shareholders for money damages except for liability
resulting from (a) actual receipt of an improper benefit or profit in money,
property or services, or (b) active and deliberate dishonesty established by a
final judgment and which is material to the cause of action. The Registrant's
charter contains such a provision eliminating such liability to the maximum
extent permitted under Maryland law.
The Registrant's charter authorizes the Registrant, to the maximum
extent permitted under Maryland law, to obligate itself to indemnify any present
or former director or officer or any individual who, while a director of the
Registrant and at the request of the Registrant, serves
3
or has served another corporation, real estate investment trust, partnership,
joint venture, trust, employee benefit plan or other enterprise as a director,
officer, partner or trustee, from and against any claim or liability to which
that person may become subject or which that person may incur by reason of his
or her status as a present or former director or officer of the Registrant and
to pay or reimburse such person's reasonable expenses in advance of final
disposition of a proceeding. The Registrant's bylaws obligate the Registrant, to
the maximum extent permitted by Maryland law, to indemnify any present or former
director or officer or any individual who, while a director of the Registrant
and at the request of the Registrant, serves or has served another corporation,
real estate investment trust, partnership, joint venture, trust, employee
benefit plan or other enterprise as a director, officer, partner or trustee and
who is made a party to the proceeding by reason of his or her service in that
capacity from and against any claim or liability to which that person may become
subject or which that person may incur by reason of his or her status as a
present or former director or officer of the Registrant and to pay or reimburse
such person's reasonable expenses in advance of final disposition of a
proceeding. The charter and bylaws also permit the Registrant to indemnify and
advance expenses to any person who served a predecessor of the Registrant in any
of the capacities described above and any employee or agent of the Registrant or
a predecessor of the Registrant.
Maryland law requires a Maryland corporation (unless its charter
provides otherwise, which the Registrant's charter does not) to indemnify a
director or officer who has been successful 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. Maryland law permits a Maryland 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 reasonable
cause to believe that the act or omission was unlawful. However, under Maryland
law, 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. In addition, Maryland
law permits a Maryland corporation to advance reasonable expenses to a director
or officer upon the corporation's receipt of (a) a written affirmation by the
director or officer of his or her good faith belief that he or she has met the
standard of conduct necessary for indemnification by the corporation, and (b) a
written undertaking by such director or officer or on his or her behalf to repay
the amount paid or reimbursed by the corporation if it is ultimately determined
that the standard of conduct was not met.
The Registrant has a "claims-made" directors and officers liability
insurance policy that insures the directors and officers of the Registrant
against loss from claimed insured wrongful acts. The policy limit of liability
is $10,000,000 each policy year and is subject to retentions for each loss of
$100,000, or $500,000 with respect to securities laws related losses, for the
Registrant.
4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NO. DESCRIPTION
4.1 Charter of Capital Trust, Inc. (filed as Exhibit 3.1.a to the
Registrant's current report on Form 8-K (SEC File No. 001-14788)
filed on April 2, 2003 and incorporated herein by reference).
4.2 Amended and Restated By-Laws of Capital Trust, Inc. (filed as Exhibit
3.2 to the Registrant's current report on Form 8-K (SEC File No.
001-14788) filed on January 29, 1999 and incorporated herein by
reference).
4.3 First Amendment to Amended and Restated Bylaws of Capital Trust, Inc.
(filed as Exhibit 3.2 to the Registrant's quarterly report on Form
10-Q (SEC File No. 001-14788) filed on August 16, 2004 and
incorporated herein by reference).
5.1 Opinion of Venable LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Venable LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included as a part of the signature page of this
Registration Statement).
99.1 Capital Trust, Inc. 2004 Long-Term Incentive Plan (filed as Exhibit
10.4 to the Registrant's quarterly report on Form 10-Q (SEC File No.
001-14788) filed on August 16, 2004 and incorporated herein by
reference).
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 the Registration
Statement (or the most recent
5
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any
increase or decrease in 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 a 20% 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
the Registration Statement or any material change to
such information in the Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 Exchange Act, 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.
(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) The undersigned Registrant hereby undertakes, that, 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
6
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.
7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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, thereunto
duly authorized, in the City of New York, State of New York, on this 1st day of
November, 2004.
CAPITAL TRUST, INC.
By: /s/ John R. Klopp
-------------------------------
Name: John R. Klopp
Title: Chief Executive Officer
8
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints John R. Klopp and Brian H. Oswald, and each of them, the true and
lawful attorneys-in-fact and agents of the undersigned, with full power of
substitution and resubstitution, for and in the name, place and stead of the
undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement (or any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933) and to cause the same
to be filed, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby granting to said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing whatsoever requisite or desirable to be
done in and about the premises, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
acts and things that said attorneys-in-fact and agents, or either of them, or
their substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Samuel Zell Chairman of the Board of Directors November 1, 2004
---------------------------
Samuel Zell
/s/ John R. Klopp Director, Chief Executive Officer and November 1, 2004
--------------------------- President (principal executive officer)
John R. Klopp
/s/ Brian H. Oswald Chief Financial Officer (principal financial November 1, 2004
--------------------------- and accounting officer)
Brian H. Oswald
/s/ Jeffrey A. Altman Director November 1, 2004
---------------------------
Jeffrey A. Altman
/s/ Thomas E. Dobrowski Director November 1, 2004
---------------------------
Thomas E. Dobrowski
/s/ Martin L. Edelman Director November 1, 2004
---------------------------
Martin L. Edelman
/s/ Craig M. Hatkoff Director November 1, 2004
---------------------------
Craig M. Hatkoff
/s/ Henry N. Nassau Director November 1, 2004
---------------------------
Henry N. Nassau
9
/s/ Joshua A. Polan Director November 1, 2004
---------------------------
Joshua A. Polan
/s/ Lynne B. Sagalyn Director November 1, 2004
---------------------------
Lynne B. Sagalyn
10
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
4.1 Charter of Capital Trust, Inc. (filed as Exhibit 3.1.a to the
Registrant's current report on Form 8-K (SEC File No. 001-14788)
filed on April 2, 2003 and incorporated herein by reference).
4.2 Amended and Restated By-Laws of Capital Trust, Inc. (filed as Exhibit
3.2 to the Registrant's current report on Form 8-K (SEC File No.
001-14788) filed on January 29, 1999 and incorporated herein by
reference).
4.3 First Amendment to Amended and Restated Bylaws of Capital Trust, Inc.
(filed as Exhibit 3.2 to the Registrant's quarterly report on Form
10-Q (SEC File No. 001-14788) filed on August 16, 2004 and
incorporated herein by reference).
5.1 Opinion of Venable LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Venable LLP (included in Exhibit 5.1).
24.1 Powers of Attorney (included as a part of the signature page of this
Registration Statement).
99.1 Capital Trust, Inc. 2004 Long-Term Incentive Plan (filed as Exhibit
10.4 to the Registrant's quarterly report on Form 10-Q (SEC File No.
001-14788) filed on August 16, 2004 and incorporated herein by
reference).