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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STARWOOD FINANCIAL INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND APPLIED FOR
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1114 AVENUE OF THE AMERICAS, 27TH FLOOR
NEW YORK, NEW YORK 10036
(212) 930-9400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
TRINET CORPORATE REALTY TRUST, INC. 1995 STOCK INCENTIVE PLAN
TRINET CORPORATE REALTY TRUST, INC. 1997 STOCK INCENTIVE PLAN
----------------
JAY SUGARMAN
CHIEF EXECUTIVE OFFICER
STARWOOD FINANCIAL INC.
1114 AVENUE OF THE AMERICAS, 27TH FLOOR
NEW YORK, NEW YORK 10036
(212) 930-9400
(NAME, ADDRESS INCLUDING ZIP CODE AND
TELEPHONE NUMBER, INCLUDING AREA CODE OF AGENT FOR SERVICE)
with a copy to:
ROBERT E. KING, JR., ESQ.
ROGERS & WELLS LLP
200 PARK AVENUE
NEW YORK, NEW YORK 10166
(212) 878-8000
CALCULATION OF REGISTRATION FEE
- ------------------------------- --------------------- --------------------- -------------------- -------------------
Proposed
Amount Maximum Proposed Amount of
Title of Securities to be to be Offering Price Maximum Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price Fee
- ------------------------------- --------------------- --------------------- -------------------- -------------------
Common Stock, par value $.001
per share 726,410 $20.45 $14,855,084 $4,129.71
=============================== ===================== ===================== ==================== ===================
(1) Consists of 11,084 for the TriNet Corporate Realty Trust Inc. 1995 Stock
Incentive Plan and 620,577 shares TriNet Corporate Realty Trust Inc. 1997
Stock Incentive Plan. Any additional shares to be issued as a result of
stock dividends, stock splits or similar transactions prior to the
termination of this Registration Statement shall be covered by this
Registration Statement as provided in Rule 416.
(2) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(c), on the basis of the average of the high and low
prices of the Registrant's Common Stock reported in the consolidated
reporting system on the New York Stock Exchange Composite Tape on
November 4, 1999.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified by Item 1 and 2 of Part I of Form S-8 is
omitted from this filing in accordance with the provisions of Rule 428 under the
Securities Act of 1933, as amended and the introductory note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of Starwood Financial Inc. (the
"Company"), its predecessor Starwood Financial Trust (the "Predecessor"), and
TriNet Corporate Realty Trust, Inc. ("TriNet"), all of which are on file with
the Securities and Exchange Commission (the "Commission "), are incorporated by
reference in this Registration Statement:
(a) The Predecessor's Annual Report on Form 10-K, File No.
1-10150, for the fiscal year ended December 31, 1998;
(b) The Predecessor's Quarterly Report on Form 10-Q, File No.
1-10150, for the fiscal period ended June 30, 1999;
(c) The Predecessor's Current Report on Form 8-K, File No.
1-10150, dated June 22, 1999 as amended;
(d) The Predecessor's Registration Statement on Form S-4, as
amended, File No. 333-85897, dated September 20, 1999;
(e) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A, File No. 1-15371, dated
October 5, 1999;
(f) TriNet's Annual Report on Form 10-K, File No. 1-11918, for
the fiscal year ended December 31, 1998;
(g) TriNet's Quarterly Report on Form 10-Q, File No. 1-11918,
for the fiscal period ended June 30, 1999; and
(h) TriNet's Current Report on Form 8-K, File No. 1-11918,
dated July 15, 1999, June 22, 1999, April 1, 1999 and February 3, 1999.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, will be deemed incorporated by reference in this Registration
Statement and to be a part of it from the date of filing those documents.
For purposes of this Registration Statement, any statement
contained in a report, document or appendix incorporated or deemed incorporated
by reference in this Registration Statement will be deemed modified or
superseded to the extent that a statement contained in this Registration
Statement or in any subsequently filed report, document or appendix which also
is or is deemed incorporated by reference modifies or supersedes that statement
in that report, document or appendix. Any statement so modified or superseded
will not be deemed, except as modified or superseded, to constitute a part of
this Registration Statement.
Upon the written or oral request of any person to whom this
Registration Statement has been delivered, the Company will provide without
charge to that person a copy of any of the information (excluding exhibits
unless such exhibits are specifically incorporated by reference into such
information) that has been incorporated by reference into this Registration
Statement but not delivered with it. Requests should be directed to Investor
Relations at the following address and telephone number:
Starwood Financial Inc., 1114 Avenue of the Americas, 27th Floor, New York, New
York 10036 (212) 930-9400.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the MGCL, Article VII of our Charter ("the
Charter") provides for the limitation of the liability of our directors and
officers as follows:
To the fullest extent permitted by Maryland statutory or decisional law, as
amended or interpreted, no director or officer of the Corporation shall be
personally liable to the Corporation or its Stockholders for money damages.
No amendment of the Charter of the Corporation or repeal of any of its
provisions shall limit or eliminate the limitation on liability provided to
directors and officers hereunder with respect to any act or omission
occurring prior to such amendment or repeal. In addition to any Maryland
statute limiting the liability of directors or officers of a Maryland
corporation, no director or officer of the Corporation shall be liable to
the Corporation or to any director for any act or omission of any other
director, stockholder, officer, or agent of the Corporation or be held to
any personal liability whatsoever in tort, contract, or otherwise in
connection with the affairs of this Corporation except only that arising
from his own willful violation of the provisions of this Charter or of the
Bylaws which violation is materially against the interests of the
stockholders and results in material harm to such interests, or gross
negligence in the performance of his or her duties.
As permitted by the MGCL, our Charter provides for
indemnification of our directors and officers as follows:
The Corporation shall indemnify (i) its directors and officers, whether
serving the Corporation or, at its request, any other entity, to the full
extent required or permitted by the General Laws of the State of Maryland
now or hereafter in force, including the advance or reimbursement of
reasonable expenses as incurred (including reasonable attorneys fees) under
the procedures and to the full extent permitted by law and (ii) other
employees and agents to such extent as shall be authorized by the Board or
the Corporation's Bylaws and be permitted by law. The foregoing rights of
indemnification shall not be exclusive of any other rights to which those
seeking indemnification may be entitled. The Board may take such action as
is necessary to carry out these indemnification provisions and is expressly
empowered to adopt, approve and amend from time to time such Bylaws,
resolutions or contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law. No amendment of
the Charter or repeal of any of its provisions shall limit or eliminate the
right to indemnification provided hereunder with respect to acts or
omissions occurring prior to such amendment or repeal.
Section 12.1 of our Bylaws implements the Indemnification
provisions of our Charter. The Bylaws state that, to the maximum extent
permitted by Maryland law, as amended from time to time, the Company shall
indemnify and hold harmless, and pay or reimburse reasonable expenses in
advance of final disposition of a proceeding, to each director and officer.
Section 2-418 of the MGCL permits the charter of a Maryland
corporation to include a provision limiting the liability of directors and
officers to the corporation and its stockholders for money damages, except when
it is established that (i) the act or omission was material to the matter giving
rise to the proceeding and either (a) was committed in bad faith, or (b) was the
result of active and deliberate dishonesty, (ii) the person actually received an
improper benefit or profit in money, property or services, or (iii) in the case
of any criminal proceeding, the trustee had reasonable cause to believe that the
omission was unlawful.
As permitted under Section 2-418 of the MGCL, we have
purchased and maintain insurance on behalf of our directors and officers against
any liability asserted against such directors and officers in their capacities
as such, whether or not we would have the power to indemnify such persons under
the provisions of Maryland law governing indemnification.
We have also entered into indemnification agreements with
each of our directors and executive officers. The indemnification agreements
provide that we will indemnify the directors and executive officers to the
fullest extent permitted under law against certain liabilities (including
settlements) and expenses actually and reasonably incurred by them in
connection with any threatened or pending legal action, proceeding or
investigation to which any of them is, or is threatened to be, made a party
by reason of their status as a director, officer or agent of Starwood
Financial, or by reason of their serving at our request; provided that the
director or executive officer acted in a manner determined in good faith to
be within the scope of his authority and to be in our best interest and so
long as the director or executive officer was not guilty of gross negligence,
misconduct or a breach of his fiduciary obligation in the act or failure to
act. We will not indemnify the director and executive officer to the extent
prohibited by our Charter or Section 2.418 of the MGCL. If an amendment to
the Charter or Section 2.418 of the MGCL with respect to removal of
limitations on indemnification is approved, the indemnification agreements
will be amended accordingly. We are not required to indemnify any director or
executive officer for liabilities: (1) for which he receives payment under an
insurance policy, except for the excess beyond payment under such insurance,
or which could have been claimed under an expired insurance policy; (2) based
upon or attributable to his gaining in fact any personal profit or advantage
to which he was not legally entitled; (3) resulting from an accounting of
profits under Section 16(b) of the Securities Exchange Act of 1934; (4)
brought about or contributed to by his dishonesty, willful misconduct or bad
faith unless a judgement or other final adjudication adverse to the director
or executive officer establishes that he was not guilty of the claimed
conduct and that the conduct was not material to the course of the action so
adjudicated.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following documents are filed with or incorporated by
reference in this Registration Statement:
5 Opinion and consent of Ballard Spahr Andrews &
Ingersoll, LLP.
23.1 Consent of PricewaterhouseCoopers LLP (New York).
23.2 Consent of PricewaterhouseCoopers LLP (San Francisco).
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 of 1933, as amended;
(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 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 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 (1)(i) and (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 by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 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 will be deemed a new Registration Statement relating
to the securities offered in it, and the offering of the
securities at that time will be deemed the
initial bona fide offering.
(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 liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement will be deemed to be a new Registration Statement
relating to the securities offered in that Registration Statement, and the
offering of the securities at that time will be deemed to be the initial bona
fide offering thereof.
(c) 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 Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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, on November 4, 1999.
STARWOOD FINANCIAL INC.
/s/ Jay Sugarman
----------------------------------
By: Jay Sugarman
Title: Chief Executive Officer and
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
hereby constitutes and appoints Barry S. Sternlicht, Jay Sugarman and Madison
Grose (each with full power to act alone), his or her true and lawful
attorney-in-fact and agent with full power of substitution, in the name and on
behalf of the undersigned, to do any and all acts and things and to execute any
and all instruments which said attorney and agent, may deem necessary or
advisable to enable Starwood Financial Inc. (the "Registrant") to comply with
the Securities Act of 1933 (the "Securities Act"), and with the Securities
Exchange Act of 1934, and any rules, regulations and requirements of the
Securities and Exchange Commission in respect thereof in connection with this
Registration Statement and any and all amendments thereto or reports that the
Registrant is required to file pursuant to the requirements of federal or state
securities laws or any rules and regulations thereunder. The authority granted
under this Power of Attorney shall include, but not be limited to, the power and
authority to sign the name of the undersigned in the capacity or capacities set
forth below to a Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission, to any and all amendments (including
post-effective amendments) to that Registration Statement in respect of the
same, and to any and all instruments filed as a part of or in connection with
that Registration Statement; and each of the undersigned hereby ratifies and
confirms all that the attorney-in-fact and agent, shall 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.
NAME TITLE DATE
---- ----- ----
/s/ Barry S. Sternlicht Chairman of the Board of Directors November 4, 1999
- -----------------------
Barry S. Sternlicht
/s/ Jay Sugarman Chief Executive Officer and President November 4, 1999
- -----------------------
Jay Sugarman
Executive Vice President - Finance and
/s/ Spencer B. Haber Chief Financial Officer November 4, 1999
- -----------------------
Spencer B. Haber
/s/ Willis Andersen, Jr. Director November 4, 1999
- ------------------------
Willis Andersen, Jr.
/s/ Jeffrey G. Dishner Director November 4, 1999
- ------------------------
Jeffrey G. Dishner
/s/ Jonathan D. Eilian Director November 4, 1999
- ------------------------
Jonathan D. Eilian
/s/ Madison F. Grose Director November 4, 1999
- ------------------------
Madison F. Grose
/s/ Robert W. Holman, Jr. Director November 4, 1999
- -------------------------
Robert W. Holman, Jr.
/s/ Robin Josephs Director November 4, 1999
- -------------------------
Robin Josephs
/s/ Merrick R. Kleeman Director November 4, 1999
- -------------------------
Merrick R. Kleeman
/s/ William M. Matthes Director November 4, 1999
- -------------------------
William M. Matthes
/s/ John G. McDonald Director November 4, 1999
- -------------------------
John G. McDonald
/s/ Stephen B. Oresman Director November 4, 1999
- -------------------------
Stephen B. Oresman
/s/ George R. Puskar Director November 4, 1999
- -------------------------
George R. Puskar
/s/ Kneeland C. Youngblood Director November 4, 1999
- --------------------------
Kneeland C. Youngblood
Exhibit 5
FILE NUMBER
872381
November 4, 1999
Starwood Financial Inc.
27th Floor
1114 Avenue of the Americas
New York, New York 10036
Re: Starwood Financial Inc.: Registration
Statement on Form S-8
-------------------------------------
Ladies and Gentlemen:
We have served as Maryland counsel to Starwood Financial Inc., a
Maryland corporation (the "Company"), in connection with certain matters of
Maryland law arising out of the registration of 726,410 shares (the "Shares")
of common stock, $.001 par value per share, of the Company ("Common Stock")
covered by the above-referenced Registration Statement, and all amendments
thereto (the "Registration Statement"), filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"1933 Act"). The Shares are issuable by the Company upon the exercise of options
("Starwood Options") to purchase shares of Common Stock that were converted from
options ("TriNet Options") to purchase shares of common stock, $.01 par value
per share, of TriNet Corporate Realty Trust, Inc., a Maryland corporation
("TriNet"), in connection with the merger of ST Merger Sub, Inc., a Maryland
corporation and a wholly owned subsidiary of the Company ("ST"), with and into
TriNet (the "Merger"), pursuant to the Agreement and Plan of Merger, dated as of
June 15, 1999, as amended (the "Merger Agreement"), by and between the Company
(then Starwood Financial Trust, a Maryland real estate investment trust), TriNet
and ST. Capitalized terms used but not defined herein shall have the meanings
given to them in the Registration Statement.
In connection with our representation of the Company, and as a basis
for the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
Starwood Financial Inc.
November 4, 1999
Page 2
1. The Registration Statement;
2. The Charter of the Company (the "Charter"), certified as of a recent
date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
3. The Bylaws of the Company, certified as of the date hereof by an
officer of the Company;
4. A certificate of the SDAT as to the good standing of the Company,
dated as of a recent date;
5. Articles of Merger relating to the Merger, certified as of a recent
date by the SDAT;
6. Resolutions adopted by the Board of Directors of the Company
relating to the authorization of the registration of the Shares and the issuance
of the Shares upon exercise of Starwood Options (the "Resolutions"), certified
as of the date hereof by an officer of the Company;
7. The Merger Agreement;
8. A certificate executed by an officer of the Company, dated the date
hereof; and
9. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth below, subject to the assumptions,
limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the
following:
1. Each individual executing any of the Documents, whether on behalf of
such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and such party's obligations set forth therein
are legal, valid and binding and are enforceable in accordance with all stated
terms.
Starwood Financial Inc.
November 4, 1999
Page 3
4. Any Documents submitted to us as originals are authentic. Any
Documents submitted to us as certified or photostatic copies conform to the
original documents. All signatures on all such Documents are genuine. All public
records reviewed or relied upon by us or on our behalf are true and complete.
All statements and information contained in the Documents are true and complete.
There has been no oral or written modification of or amendment to any of the
Documents, and there has been no waiver of any provision of any of the
Documents, by action or omission of the parties or otherwise.
5. The Shares will not be issued or transferred in violation of any
restriction or limitation contained in the Charter.
6. All requisite corporate action was taken by TriNet and ST to validly
approve the Merger under Maryland law.
Based upon the foregoing, and subject to the assumptions, limitations
and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under
and by virtue of the laws of the State of Maryland and is in good standing with
the SDAT.
2. The Shares have been duly authorized for issuance and, when and if
issued and delivered against payment therefor in accordance with the Resolutions
and the Merger Agreement, will be (assuming that upon any such issuance the
total number of shares of Common Stock issued and outstanding will not exceed
the total number of shares of Common Stock that the Company is then authorized
to issue under the Charter) validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the substantive laws of the State
of Maryland and we do not express any opinion herein concerning any other law.
We express no opinion as to compliance with any federal or state securities
laws, including the securities laws of the State of Maryland, or as to federal
or state laws regarding fraudulent transfers. We assume no obligation to
supplement this opinion if any applicable law changes after the date hereof or
if we become aware of any fact that might change the opinion expressed herein
after the date hereof.
This opinion is being furnished to you for submission to the Commission
as an exhibit to the Registration Statement
Starwood Financial Inc.
November 4, 1999
Page 4
and, accordingly, may not be relied upon by, quoted in any manner to, or
delivered to any other person or entity (except Rogers & Wells LLP, counsel to
the Company, in connection with any opinion rendered by it on the date hereof
relating to the Shares) without, in each instance, our prior written consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of the name of our firm therein. In
giving this consent, we do not admit that we are within the category of persons
whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 15, 1999 relating to the
financial statements and financial statement schedules of Starwood Financial
Trust, which appears in Starwood Financial Trust's Annual Report on Form 10-K
for the year ended December 31, 1998.
PricewaterhouseCoopers LLP
New York, NY
November 2, 1999
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated January 22, 1999, except for Note 16,
as to which the date is March 12, 1999, on the financial statements and
financial statement schedules of TriNet Corporate Realty Trust, Inc., which
appear in TriNet Corporate Realty Trust Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1998.
PricewaterhouseCoopers LLP
San Francisco, CA
November 2, 1999
