As filed with the Securities and Exchange Commission on August 9, 2002
File No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PROLOGIS
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 74-2604728
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION)
14100 EAST 35TH PLACE 80011
AURORA, COLORADO (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE:
(303) 375-9292
PROLOGIS
1997 LONG-TERM INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
EDWARD S. NEKRITZ, ESQ.
SECRETARY, SENIOR VICE PRESIDENT AND GENERAL COUNSEL
14100 EAST 35TH PLACE
AURORA, COLORADO 80011
(303) 375-9292
(AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share(1) Offering Price(1) Registration Fee
---------------------------------- --------------------- ------------------- ------------------- ---------------------
Common Shares of Beneficial
Interest, par value $.01 per 8,000,000 $24.645 $197,160,000 $18,138.72
share (including related
preferred share purchase rights)
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(1) Estimated solely for the purpose of computing the registration fee on
the basis of the average of the high and low prices for the Common
Shares as reported on the New York Stock Exchange on August 6, 2002.
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EXPLANATORY NOTE
This Registration Statement is being filed to increase the number of
shares available under the ProLogis 1997 Long-Term Incentive Plan, as amended
(the "Plan"). On June 12, 2002, the shareholders of ProLogis, a Maryland real
estate investment trust ("ProLogis"), following approval by ProLogis' Board of
Trustees, approved an amendment to the Plan to increase by 8,000,000 the number
shares available for award thereunder. As a result, there are an aggregate of
22,600,000 common shares of beneficial interest (190,000 of which are allocated
to the ProLogis 401(k) Savings Plan and Trust) of ProLogis available for award
under the Plan. The contents of the Registration Statements of Form S-8 (File
Nos. 333-31421 and 333-70274) relating to the Plan are incorporated herein by
reference. To the extent that the Items contained in such Registration
Statements have not changed, they are omitted from this Registration Statement.
Part II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 4, Section 10 of the Declaration of Trust provides as follows
with respect to the limitation of liability of Trustees:
"To the maximum extent that Maryland law in effect from time to time
permits limitation of the liability of trustees of a real estate investment
trust, no Trustee of the Trust shall be liable to the Trust or to any
Shareholder for money damages. Neither the amendment nor repeal of this Section
10, nor the adoption or amendment of any other provision of this Declaration of
Trust inconsistent with this Section 10, shall apply to or affect in any respect
the applicability of the preceding sentence with respect to any act or failure
to act which occurred prior to such amendment, repeal or adoption. In the
absence of any Maryland statute limiting the liability of trustees of a Maryland
real estate investment trust for money damages in a suit by or on behalf of the
Trust or by any Shareholder for money damages except to the extent that (i) the
Trustee actually received an improper benefit or profit in money, property or
services, for the amount of the benefit or profit in money, property or services
actually received; or (ii) a judgment or other final adjudication adverse to the
Trustee is entered in a proceeding based on a finding in the proceeding that the
Trustee's action or failure to act was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding."
Article 4, Section 11 of the Declaration of Trust provides as follows
with respect to the indemnification of Trustees:
"The Trust shall indemnify each Trustee, to the fullest extent
permitted by Maryland law, as amended from time to time, in connection with any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
was a Trustee of the Trust or is or was serving at the request of the Trust as a
director, trustee, officer, partner, manager, member, employee or agent of
another foreign or domestic corporation, partnership, joint venture, trust,
limited liability company, other enterprise or employee benefit plan, from all
claims and liabilities to which such person may become subject by reason of
service in such capacity and shall pay or reimburse reasonable expenses, as such
expenses are incurred, of each Trustee in connection with any such proceedings."
Article 8, Section 1 of the Declaration of Trust provides as follows
with respect to the limitation of liability of officers and employees:
"To the maximum extent that Maryland law in effect from time to time
permits limitation of the liability of officers of a real estate investment
trust, no officer of the Trust shall be liable to the Trust or to any
Shareholder for money damages Neither the amendment nor repeal of this Section
1, nor the adoption or amendment of any other provision of this Declaration of
Trust inconsistent with this Section 1, shall apply to or affect in any respect
the applicability of the preceding sentence with respect to any act or failure
to act which occurred prior to such amendment, repeal or adoption. In the
absence of any Maryland statute limiting the liability of officers of a Maryland
real estate investment trust for money, damages in a suit by or on behalf of the
Trust or by any Shareholder, no officer of the Trust shall be liable to the
Trust or to any Shareholder for money damages except to the extent that (i) the
officer actually received an improper benefit or profit in money, property or
services, for the amount of the benefit or profit in money, property or services
actually received; or (ii) a judgment or other final adjudication adverse to the
officer is entered in a proceeding based on a finding in the proceeding that the
officer's action or failure to act was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding."
Article 8, Section 2 of the Declaration of Trust provides as follows
with respect to the indemnification of officers and employees:
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"The Trust shall have the power to indemnify each officer, employee and
agent, to the fullest extent permitted by Maryland law, as amended from time to
time, in connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he or she was an officer, employee or agent of the Trust or is
or was serving at the request of the Trust as a director, trustee, officer,
partner, manager, member, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust, limited liability company, other
enterprise or employee benefit pan, from all claims and liabilities to which
such person may become subject by reason of service in such capacity and shall
pay or reimburse reasonable expenses, as such expenses are incurred, of each
officer, employee or agent in condition with any such proceedings."
ProLogis has entered into indemnity agreements with each of its
officers and Trustees which provide for reimbursement by all expenses and
liabilities of such officer or Trustee, arising out of any lawsuit or claim
against such officer or Trustee due to the fact that he was or is serving as an
officer or Trustee, except for such liabilities and expenses (a) the payment of
which is judicially determined to be unlawful, (b) relating to claims under
Section 16(b) of the Securities Exchange Act of 1934 or (c) relating to
judicially determined criminal violations. In addition, ProLogis has entered
into indemnity agreements with each of its Trustees who is not also an officer
of ProLogis which provide for indemnification and advancement of expenses to the
fullest lawful extent permitted by Maryland law in connection with any pending
or completed action, suit or proceeding by reason of serving as a Trustee and
ProLogis has established a trust to fund payments under the indemnification
agreements.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
ProLogis has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized in the City of Aurora, State of
Colorado, on August 9, 2002.
PROLOGIS
By /s/ K. Dane Brooksher
-----------------------------------
K. Dane Brooksher
Chairman and Chief Executive Officer
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of ProLogis, a Maryland real
estate investment trust, and the undersigned trustees and officers of ProLogis,
hereby constitutes and appoints K. Dane Brooksher, M. Gordon Keiser, Jr., Luke
A. Lands, and Edward S. Nekritz, its or his true and lawful attorneys-in-fact
and agents, for it or him and in its or his name, place and stead, in any and
all capacities, with full power to act alone, to sign any and all amendments to
this report, and to file each such amendment to this report, with all exhibits
thereto, and any and all documents in connection therewith, with the Securities
and Exchange Commission, hereby granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform any and all acts
and things requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as it or he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them 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 BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date
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/s/ K. Dane Brooksher Chairman, Chief Executive Officer and August 9, 2002
------------------------------------ Trustee
K. Dane Brooksher
/s/ Irving F. Lyons III Vice-Chairman, Chief Investment August 9, 2002
------------------------------------ Officer and Trustee
Irving F. Lyons III
/s/ Walter C. Rakowich Chief Financial Officer and Managing August 9, 2002
------------------------------------ Director
Walter C. Rakowich
/s/ Luke A. Lands Senior Vice President and Controller August 9, 2002
------------------------------------
Luke A. Lands
/s/ Shari J. Jones Vice President August 9, 2002
------------------------------------ (Principal Accounting Officer)
Shari J. Jones
/s/ Stephen L. Feinberg Trustee August 9, 2002
------------------------------------
Stephen L. Feinberg
/s/ George L. Fotaides Trustee August 9, 2002
------------------------------------
George L. Fotaides
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/s/ Donald P. Jacobs Trustee August 9, 2002
------------------------------------
Donald P. Jacobs
/s/ Kenneth N. Stensby Trustee August 9, 2002
------------------------------------
Kenneth N. Stensby
/s/ Andre Teixeira Trustee August 9, 2002
------------------------------------
Andre Teixeira
/s/ Neelie Kroes Trustee August 9, 2002
------------------------------------
Neelie Kroes
/s/ William D. Zollars Trustee August 9, 2002
------------------------------------
William D. Zollars
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MFS Heritage Trust Company ("MHTC") acts solely as a directed trustee for the
ProLogis 401(k) Savings Plan and Trust ("Plan"). ProLogis, the Plan
administrator of the Plan, has directed MHTC to sign the Registration Statement.
MHTC has not independently reviewed the contents of this Registration Statement
and is not responsible for its accuracy.
MFS HERITAGE TRUST, as trustee of the ProLogis 401(k) Savings Plan and Trust
By:/s/ Robert T. Burns
---------------------------------
Name: Robert T. Burns
Title: Senior Vice President
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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4.1 Articles of Amendment and Restatement of ProLogis
(incorporated by reference to Exhibit 3.1 to ProLogis' Form
10-Q for the period ending June 30, 1999)
4.2 Amendment to Articles of Amendment and Restatement of ProLogis
(incorporated by reference to Exhibit 99.1 ProLogis' Form 8-K
dated May 30, 2002)
4.2 Amended and Restated Bylaws of ProLogis (incorporated by
reference to Exhibit 3.2 to ProLogis' Form 10-Q for the period
ending June 30, 1999)
4.3 Rights Agreement, dated as of December 31, 1993, between
ProLogis and State Street Bank and Trust Company, as Rights
Agent, including form of Rights Certificate (incorporated by
reference to Exhibit 4.4 to ProLogis' registration statement
No. 33-78080)
4.4 First Amendment to Rights Amendment, dated as of February 15,
1995, between ProLogis, State Street Bank and Trust Company
and The First National Bank of Boston, as successor Rights
Agent (incorporated by reference to Exhibit 3.1 to ProLogis'
Form 10-Q for the quarter ended September 30, 1995)
4.5 Second Amendment to Rights Agreement, dated as of June 22,
1995, between ProLogis, State Street Bank and Trust Company
and The First National Bank of Boston (incorporated by
reference to Exhibit 3.1 to ProLogis' Form 10-Q for the
quarter ended September 30, 1995)
4.6 Third Amendment to Rights Agreement, dated October 11, 2001,
among ProLogis, Fleet National Bank and EquiServe Trust
Company, N.A. (incorporated by reference to Exhibit 4.1 to
ProLogis' Form 10-Q for the quarter ended September 30, 2001)
4.7 Form of share certificate for Common Shares of Beneficial
Interest of ProLogis (incorporated by reference to Exhibit 4.4
to ProLogis' registration statement No. 33-73382)
4.8 ProLogis 1997 Long-Term Incentive Plan (as Amended and
Restated effective as of May 18, 2000 (incorporated by
reference to Exhibit 10.1 to ProLogis' Form 10-Q for the
quarter ended June 30, 2000)
5 Opinion of Mayer, Brown, Rowe & Maw
15 Letter regarding unaudited interim financial information
23.1 Consent of Arthur Andersen LLP (After reasonable efforts to
obtain the Consent of Arthur Andersen LLP, ProLogis has not
been able to obtain such consent. Pursuant to Rule 437a
promulgated under the Securities Exchange Act of 1933, as
amended, ProLogis may dispense with the requirement that the
Consent of Arthur Andersen LLP be filed with this Registration
Statement. While the extent of any resulting limitations on
recovery by investors is unclear, the lack of a currently
dated consent could limit the time within which any such
actions by investors against Arthur Andersen LLP for
liabilities arising under Section 11 of the Securities Act of
1933, as amended, must be brought.)
23.2 Consent of KPMG LLP, Stockholm, Sweden
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23.3 Consent of KPMG LLP, New York, New York
23.4 Consent of Mayer, Brown, Rowe & Maw (included in its opinion
filed as Exhibit 5 hereto)
24 Power of Attorney (included on the signature page hereto)
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