As filed with the Securities and Exchange Commission on September 13, 2002
Registration 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
_____________________
SIZELER PROPERTY INVESTORS, INC.
(Exact Name of Registrant as Specified in its Charter)
Maryland 72-1082589
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2542 Williams Boulevard
Kenner, Louisiana 70062
(Address of Principal Executive Offices, including Zip Code)
_____________________
Sizeler Property Investors, Inc. 1996 Stock Option Plan, as amended
(Full Title of the Plan)
_____________________
Sidney W. Lassen, Chairman
2542 Williams Boulevard
Kenner, Louisiana 70062
(Name and Address of Agent for Service)
(504) 471-6200
(Telephone Number, Including Area Code, of Agent for Service)
_____________________
Copy to:
William I. Schapiro, Esq.
Jaeckle Fleischmann & Mugel, LLP
800 Fleet Bank Building
12 Fountain Plaza
Buffalo, New York 14202
(716) 856-0600
_____________________
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount To Offering Price Aggregate Offering Registration
To Be Registered Be Registered Per Share Price (1) Fee (1)
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Common Stock,
$0.0001 par value
per share (2)(3) 1,200,000 Various $12,024,000 $1,106.21
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(1) Determined in accordance with Rule 457(h)(1) and 457(c) under the
Securities Act of 1933 based on the average of the high and low
reported sales prices on the New York Stock Exchange on September 10,
2002.
(2) Includes associated rights to purchase Series A Preferred Stock
pursuant to the Shareholder Rights Agreement dated as of August 6,
1998, as amended.
(3) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate number of
additional shares that may be offered and issued to prevent dilution
resulting from stock splits, stock dividends or similar transactions
as provided in the Sizeler Property Investors, Inc. 1996 Stock Option
Plan, as amended.
As permitted by Rule 429 under the Securities Act of 1933, as amended, the
prospectus related to this Registration Statement also covers securities
registered under Registration Statement No. 333-16073.
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EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed to register
1,200,000 additional shares of common stock, par value $0.0001 per share
("Common Stock"), of Sizeler Property Investors, Inc. which have been reserved
for issuance under the Sizeler Property Investors, Inc. 1996 Stock Option Plan,
as amended (the "Plan"). A total of 600,000 shares of Common Stock reserved
under the Plan have previously been registered on a Registration Statement on
Form S-8 (Registration No. 333-16073) filed on November 13, 1996.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees participating in the plan described herein as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). In accordance with the instructions to Part I of Form S-8,
such documents will not be filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute the
prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Sizeler Property Investors, Inc. (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents filed by it with the Commission:
. Our Annual Report on Form 10-K for the year ended December 31,
2001.
. Our Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 2002.
. Our Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2002
. Our Current Report on Form 8-K, as filed with the SEC on May 8,
2002.
. Our Current Report on Form 8-K, as filed with the SEC on May 8,
2002.
. Our Registration Statement on Form 8-A, as filed with the SEC on
August 26, 1998.
. Our Registration Statement on Form 8-A/A, as filed with the SEC
on December 18, 2001.
In addition, all documents filed by the Registrant subsequent to the
date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and 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, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein 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 (the Common Stock is registered under Section 12 of the
Exchange Act).
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant is organized in the State of Maryland. The Maryland
General Corporation Law ("MGCL") permits a 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 (i) actual receipt of an improper personal benefit or profit in
money, property or services or (ii) active and deliberate dishonesty established
by a final judgment as being material to the cause of action.
The MGCL permits 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 the person is made a party by reason of his or her service
in that capacity. The MGCL permits a corporation to
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indemnify its present and former directors and officers, among others, 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 (i) the
act or omission of the indemnified party was material to the matter giving rise
to the proceeding and (a) was committed in bad faith or (b) was the result of
active and deliberate dishonesty; (ii) the indemnified party actually received
an improper personal benefit in money, property or services; or (iii) in the
case of any criminal proceeding, the indemnified party had reasonable cause to
believe that the act or omission was unlawful.
The indemnity may include judgments, penalties, fines, settlements and
reasonable expenses actually incurred by the director or officer in connection
with the proceeding; provided, however, that if the proceeding is one by or in
the right of the Maryland corporation, indemnification is not permitted with
respect to any proceeding in which the director or officer has been adjudged to
be liable to the corporation.
In addition, a director or officer of a Maryland corporation may not
be indemnified with respect to any proceeding charging improper personal benefit
to the director or officer in which the director or officer was adjudged to be
liable on the basis that personal benefit was improperly received. 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
rebuttal 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.
As a condition to advancing expenses to a director who is a party to a
proceeding, the MGCL requires the Registrant to obtain (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 Registrant and
(b) a written statement by or on his or her behalf to repay the amount paid or
reimbursed by the Registrant if it shall ultimately be determined that the
standard of conduct was not met.
The Registrant's Charter provides that the Registrant will indemnify
its directors and officers, whether serving the Corporation or at its request
any other entity, to the full extent required or permitted by Maryland law,
including the advance of expenses under the procedures and to the full extent
permitted by law. The Registrant's Charter contains a provision which limits a
director's or officer's personal liability for monetary damages to the
Registrant or its stockholders. The Registrant's Charter also provides that the
Registrant will indemnify other employees and agents to the extent authorized by
the Registrant's board of directors or the Registrant's Bylaws. The Bylaws of
the Registrant do not authorize any such indemnification for non-director,
non-officer employees or agents.
The Registrant has entered into an indemnification agreement (the
"Indemnification Agreement') with each of its directors and officers, and the
Board of Directors has authorized the Registrant to enter into an
Indemnification Agreement with each of the future directors and officers of the
Registrant. The MGCL permits a corporation to indemnify its
3
directors and officers. However, the protection that is specifically afforded by
the MGCL authorizes other arrangements for indemnification of directors and
officers, including insurance. The Indemnification Agreement is intended to
provide indemnification to the maximum extent allowable by, or not in violation
of, or offensive to, any law of the State of Maryland.
The Indemnification Agreement provides that the Registrant shall
indemnify a director or officer who is a party to the agreement (the
"Indemnitee"), if he or she was or is a party to or otherwise involved in any
proceeding by reason of the fact that he or she was or is a director or officer
of the Registrant, or was or is serving at its request in a certain capacity of
another entity, against losses incurred in connection with the defense or
settlement of such proceeding. This indemnification shall be provided to the
fullest extent permitted by the Indemnification Agreement. This is similar to
the indemnification provided by the MGCL except that indemnification is not
available under the Indemnification Agreement to the Indemnitee who pays any
amount in settlement of a proceeding without the Registrant's written consent.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
4.1 Form of Certificate for Common Stock, $0.0001 par value (incorporated
by reference to Exhibit 5 to the Registrant's amended registration
statement on Form 8-A/A filed with the SEC on December 18, 2001).
4.2 Shareholder Rights Agreement dated as of August 6, 1998 (incorporated
by reference to the Registrant's Form 8-A filed on August 26, 1998).
4.3 Amendment No. 1 to Shareholder Rights Agreement, dated as of February
5, 1999 (incorporated by reference to the exhibits to the Registrant's
Form 10-K for the year ended December 31, 1998).
5.1 Opinion of Jaeckle Fleischmann & Mugel, LLP at to the legality of the
securities being registered (filed herewith).
23.1 Consent of KMPG LLP (filed herewith).
23.2 Consent of Jaeckle Fleischmann & Mugel, LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
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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 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; 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)
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that is incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities offered herein,
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 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, in the City of Kenner, State of Louisiana, on September 13, 2002.
SIZELER PROPERTY INVESTORS, INC.
By /s/ Sidney W. Lassen
--------------------------------------
Sidney W. Lassen
Chairman and Chief Executive Officer
POWERS OF ATTORNEY
We, the undersigned directors and officers of Sizeler Property
Investors, Inc., a Maryland corporation, do hereby constitute and appoint Sidney
W. Lassen and Thomas A. Masilla, Jr., and each and either of them, our true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, to do any and all acts and things in our names and on our behalf
in our capacities as directors and officers and to execute any and all
instruments for us and in our name in the capacities indicated below, which said
attorneys and agents may deem necessary or advisable to enable said corporation
to comply with the Securities Act of 1933 and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection with this
registration statement, or any registration statement for this offering that is
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to be effective upon filing pursuant to Rule 462(b) under the Securities Act of
1933, including specifically, but without limitation, any and all amendments
(including post-effective amendments) hereto; and we hereby ratify and confirm
all that said attorneys and agents, or either of them, shall do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 13th day of September, 2002.
Signature Title
/s/ Sidney W. Lassen Chairman of the Board and Chief Executive Officer
--------------------------- (Principal Executive Officer)
Sidney W. Lassen
/s/ Thomas A. Masilla, Jr. Vice Chairman, President and Director (Principal
--------------------------- Operating Officer)
Thomas A. Masilla, Jr.
/s/ Robert A. Whelan Chief Financial Officer (Principal Financial and
--------------------------- Accounting Officer)
Robert A. Whelan
/s/ J. Terrell Brown Director
---------------------------
J. Terrell Brown
/s/ William G. Byrnes Director
---------------------------
William G. Byrnes
/s/ Francis L. Fraenkel Director
---------------------------
Francis L. Fraenkel
/s/ Harold B. Judell Director
---------------------------
Harold B. Judell
/s/ James W. McFarland Director
---------------------------
James W. McFarland
/s/ Richard L. Pearlstone Director
---------------------------
Richard L. Pearlstone
/s/ Theodore H. Strauss Director
---------------------------
Theodore H. Strauss
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 Form of Certificate for Common Stock, $0.0001 par value
(incorporated by reference to Exhibit 5 to the Registrant's
amended registration statement on Form 8-A/A filed with the SEC
on December 18, 2001).
4.2 Shareholder Rights Agreement dated as of August 6, 1998
(incorporated by reference to the Registrant's Form 8-A filed on
August 26, 1998).
4.3 Amendment No. 1 to Shareholder Rights Agreement, dated as of
February 5, 1999 (incorporated by reference to the exhibits to
the Registrant's Form 10-K for the year ended December 31, 1998).
5.1 Opinion of Jaeckle Fleischmann & Mugel, LLP as to the legality of
the securities being registered (filed herewith).
23.1 Consent of KMPG LLP (filed herewith).
23.2 Consent of Jaeckle Fleischmann & Mugel, LLP (included in Exhibit
5.1).
24.1 Power of Attorney (included on signature page).