UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MONMOUTH REAL ESTATE INVESTMENT CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 22-1897375
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3499 Route 9, Suite 3C, Freehold, NJ 07728
(Address of principal executive offices) (Zip code)
MONMOUTH REAL ESTATE INVESTMENT CORPORATION 1997 STOCK OPTION
PLAN
(Full title of the plan)
Anna Chew, Controller
3499 Route 9, Suite 3C, Freehold, NJ 07728
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 732-
577-9996
This registration statement shall hereafter become effective in
accordance with Rule 462 promulgated under the Securities Act of
1933, as amended.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of Amount to be offering aggregate Amount of
Securities to registered price per offering price registration
be registered (1) share (2) fee
Common Stock 5,000 $ 5.25 $ 26,250
($.01 par value) 65,000 5.50 357,500
10,000 5.85 58,500
65,000 6.765 439,725
300,000 7.13 2,139,000
20,000 7.25 145,000
780,000 6.965 (3) 5,432,700
__________ ____________
1,245,000 8,598,675 $ 791.08
========= ============ =========
(1) Pursuant to Rule 416(a), this registration statement
includes such indeterminate shares as may become subject to
options under the 1997 Stock Option Plan as a result of the
adjustment provisions therein.
(2) Estimated pursuant to Rule 457 solely for the purpose of
determining the registration fee. The price is based upon the
exercise price of the outstanding but unexercised options.
(3) Estimated pursuant to Rule 457 solely for the purpose of
determining the registration fee. The price is based upon
the high and low prices as reported on the NASDAQ National
Market System on October 25, 2002.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual
Information*
* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from the registration
statement in accordance with Rule 428 under the Securities Act of
1933 and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Monmouth Real Estate Investment Corporation (the
"Registrant") hereby incorporates by reference in this
registration statement the following documents:
(a) The Registrant's most recent annual report
on Form 10-K for the year ended September 30, 2001 filed
pursuant to Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(b) All other reports filed pursuant to Section
13(a) or 15(d) of the Exchange Act, including reports on
Form 10-Q for the periods ended December 31, 2001, March
31, 2002 and June 30, 2002.
(c) The description of the Registrant's
Class A common shares, $.01 par value, which is contained
in a registration statement filed under the Exchange Act,
including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 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 hereby have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated
by reference in this registration statement and to be a part
hereof from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of
Delaware provides, in general, that a corporation incorporated
under the laws of the State of Delaware, such as the Registrant,
may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed
action, suit or proceeding (other than a derivative action by or
in the right of the corporation) by reason of the fact that such
person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
enterprise, against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such
action, suit or proceeding if such person acted in good faith and
in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable
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cause to believe such person's conduct was unlawful. In the case
of a derivative action, a Delaware corporation may indemnify any
such person against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted
in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the corporation,
except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery of the State of Delaware or any
other court in which such action was brought determines such
person is fairly and reasonable entitled to indemnity for such
expenses.
Article XII of the Registrant's Certificate of
Incorporation and Amendments thereto states:
"To the fullest extent permitted by the
General Corporation Law of the State of Delaware, as the
same exists or may hereafter be amended, no director of the
Corporation shall be personally liable to the Corporation
or any of its stockholders for monetary damages for breach
of fiduciary duty as a director; provided, however, that
this Article XII shall not eliminate or limit the liability
of a director (i) for any breach of such director's duty of
loyalty to the Corporation nor its stockholders, (ii) for
acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii)
under Title 8, Section 174 of the General Corporation Law
of the State of Delaware or (iv) for any transaction from
which such director derived an improper personal benefit.
Failure of the Corporation to qualify as an REIT under the
REIT Provisions of the Internal Revenue Code shall not
render the directors liable to any stockholder or any other
person. Any repeal or modification of this Article XII by
the stockholders of the Corporation shall be prospective
only, and shall not adversely affect any limitation on the
personal liability of a director of the Corporation
existing at the time of such repeal or modification."
Article VI Section2 of the Registrant's By-laws and
Amendments thereto states:
"The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit,
proceeding or investigation, whether civil, criminal or
administrative, and whether external or internal to the
corporation (other than a judicial action or suit brought
by or in the right of the Corporation), by reason of the
fact that he or she is or was an Agent, against all
expenses, liability and loss (including attorneys' fees,
judgments, fines, excise taxes imposed under the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), or penalties and amounts paid or to be paid in
settlement) actually and reasonably incurred by the Agent
in connection with such action, suit, proceeding or
investigation, or any appeal therein, if the Agent acted in
good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his or
here conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that
the Agent did not act in good faith and in a manner which
he or she reasonably believed to be in or not opposed to
the best interests of the Corporation and, with respect to
any criminal action or proceeding, that the Agent had
reasonable cause to believe that his or her conduct was
unlawful."
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Article VI Section 3 of the Registrant's By-laws and
Amendments thereto states:
"The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to
any threatened, pending or completed judicial action or
suit brought by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that
such person is or was an Agent, against expenses (including
attorneys' fees) and amounts paid in settlement actually
and reasonably incurred by such person in connection with
the defense, settlement or appeal of such action or suit if
he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best
interests of the Corporation, except that no
indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon
application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court
shall deem proper."
In addition, the Registrant have entered into
indemnification agreements with its officers and directors which
contain provisions which are in some respects broader than the
specific indemnification provisions contained in Section 145 of
the General Corporation Law of the State of Delaware.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is therefore
unenforceable.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
The following are the Exhibits included in this
Registration Statement:
4.1 Monmouth Real Estate Investment Corporation's 1997
Stock Option Plan. Incorporated herein by reference to the
Registrant's Definitive Proxy Statement dated March 20, 1997,
filed with the Securities and Exchange Commission on March
21, 1997.
5 Opinion of Blackwell Sanders Peper Martin LLP regarding
legality.
23.1 Consent of Blackwell Sanders Peper Martin LLP (included
in Exhibit 5).
23.2 Consent of KPMG LLP.
24 Power of Attorney.
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Item 9. UNDERTAKINGS
(a) RULE 415 OFFERING
The 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 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 thereto) 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 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(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 registration statement is on
Form S-3 or Form S-8, 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 Securities and Exchange 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 of 1933, 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) FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS
BY REFERENCE
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report
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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) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF
REGISTRATION STATEMENT ON FORM S-8
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 foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
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 of 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.
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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 Borough of
Freehold, State of New Jersey on September 25, 2002.
MONMOUTH REAL ESTATE INVESTMENT CORPORATION
By: /s/ Eugene W. Landy
EUGENE W. LANDY
Chairman of the Board,
President and Director
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities indicated on September 25, 2002.
Signature Title
/s/ Eugene W. Landy Chairman of the Board,
Eugene W. Landy President and Director
(Principal Executive Officer)
/s/Cynthia J. Morgenstern
Cynthia J. Mortenstern Executive Vice President
and Director
/s/ Ernest V. Bencivenga
Ernest V. Bencivenga Treasurer and Director
/s/Anna T. Chew Controller and Director
Anna T. Chew (Principal Financial Officer)
/s/Daniel D. Cronheim
Daniel D. Cronheim Director
/s/Matthew I. Hirsch
Matthew I. Hirsch Director
/s/Charles P. Kaempffer
Charles P. Kaempffer Director
/s/Samuel A. Landy
Samuel A. Landy Director
/s/John R. Sampson
John R. Sampson Director
/s/ Peter J. Weidhorn
Peter J. Weidhorn Director
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EXHIBIT INDEX
4.1 Monmouth Real Estate Investment Corporation's 1997
Stock Option Plan. Incorporated herein by reference to the
Registrant's Definitive Proxy Statement dated March 20, 1997,
filed with the Securities and Exchange Commission on March 21,
1997.
5 Opinion of Blackwell Sanders Peper Martin LLP regarding
legality.
23.1 Consent of Blackwell Sanders Peper Martin LLP (included
in Exhibit 5).
23.2 Consent of KPMG LLP.
24 Power of Attorney.
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EXHIBIT 5
LETTERHEAD OF BLACKWELL SANDERS PEPER MARTIN LLP
October 28, 2002
Monmouth Real Estate Investment Corporation
3499 Route 9, Suite 3C
Freehold, NJ 07728
Ladies and Gentlemen:
We have acted as counsel to Monmouth Real Estate Investment
Corporation, a Delaware corporation (the "Company"), in
connection with the filing of a registration statement by the
Company on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, registering 1,245,000 shares
(the "Shares") of Common Stock of the Company, $.01 par value per
share, to be issued to eligible participants in accordance with
the terms of the Monmouth Real Estate Investment Corporation 1997
Stock Option Plan (the "Plan").
In connection with the foregoing, we have examined such
documents, corporate records and other instruments as we have
deemed necessary or appropriate in connection with this opinion.
Based upon and subject to the foregoing, we are of the opinion
that the Shares, when sold and issued in accordance with the
Plan, will be, legally issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/Blackwell Sanders Peper Martin LLP
Blackwell Sanders Peper Martin LLP
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EXHIBIT 23.2
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
Monmouth Real Estate Investment Corporation:
We consent to incorporation by reference in the registration
statement on Form S-8, of Monmouth Real Estate Investment
Corporation, pertaining to the Monmouth Real Estate Investment
Corporation 1997 Stock Option Plan, of our report dated December
14, 2001, relating to the balance sheets of Monmouth Real Estate
Investment Corporation as of September 30, 2001 and 2000 and the
related statements of income, shareholders' equity, and cash
flows for each of the years in the three-year period ended
September 30, 2001, and the related schedule, which report
appears in the September 30, 2001 annual report on Form 10-K of
Monmouth Real Estate Investment Corporation.
/s/KPMG LLP
KPMG LLP
Short Hills, New Jersey
October 23, 2002
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EXHIBIT 24
POWER OF ATTORNEY
Each person executing this Power of Attorney hereby
appoints Eugene W. Landy and Anna T. Chew, or either of them, as
his or her attorney-in-fact to execute and to file such
amendments to this Form S-8 Registration Statement as such
attorneys-in-fact, or either of them, may deem appropriate or
withdraw from the registration process this Registration
Statement.
This Power of Attorney has been signed by the following
persons in the capacities indicated on September 25, 2002.
Signature Title
/s/ Eugene W. Landy Chairman of the Board, President
Eugene W. Landy and Director
(Principal Executive Officer)
/s/Cynthia J. Morgenstern
Cynthia J. Mortenstern Executive Vice President and
Director
/s/ Ernest V. Bencivenga
Ernest V. Bencivenga Treasurer and Director
/s/Anna T. Chew Controller and Director
Anna T. Chew (Principal Financial Officer)
/s/Daniel D. Cronheim
Daniel D. Cronheim Director
/s/Matthew I. Hirsch
Matthew I. Hirsch Director
/s/Charles P. Kaempffer
Charles P. Kaempffer Director
/s/Samuel A. Landy
Samuel A. Landy Director
/s/John R. Sampson
John R. Sampson Director
/s/ Peter J. Weidhorn
Peter J. Weidhorn Director
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