As filed with the Securities and
Exchange Commission on April 2, 2008.
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON,
D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GMH COMMUNITIES TRUST
(Exact name of Registrant as
specified in its charter)
Maryland
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20-1181390
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(State or other
jurisdiction of
incorporation or organization)
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(IRS Employer
Identification No.)
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10 Campus
Boulevard
Newtown
Square, Pennsylvania 19073
(610)
355-8000
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(Address, including zip
code, of Principal Executive Offices)
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GMH
MILITARY HOUSING MANAGEMENT LLC
NON-QUALIFIED
DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
Joseph M.
Macchione
Executive
Vice President and General Counsel
GMH
Communities Trust
10 Campus
Boulevard
Newtown
Square, Pennsylvania 19073
(610)
355-8000
(Name, address and telephone
number,
including area code, of
agent for service)
Copies to:
John
Martini, Esq.
Reed
Smith LLP
2500 One Liberty Place
1650
Market Street
Philadelphia,
PA 19103
(215)
851-8100
CALCULATION
OF REGISTRATION FEE
Title of securities to
Be registered
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Amount
to be
registered
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Proposed
maximum
offering
price per share
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Proposed
maximum
aggregate offering
Price
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Amount
of
registration
fee
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Deferred
Compensation Obligations
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$
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10,000,000
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(1)
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N/A
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(1)
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$
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10,000,000
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(1)
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$
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393.00
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(1)
The Deferred Compensation Obligations are unsecured obligations of GMH Military Housing Management LLC,
a subsidiary of GMH Communities Trust, to pay deferred compensation in the
future in accordance with the terms of the GMH Military Housing Management LLC Non-Qualified Deferred
Compensation Plan.
PART I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified
in this Part I of Form S-8 (plan information and registrant
information and employee plan annual information) will be sent or given to
employees as specified by Securities and Exchange Commission Rule 428(b)(1). Such documents need 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. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a) of
the Securities Act of 1933, as amended (the Securities Act).
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents
by Reference.
The following documents filed by GMH Communities
Trust (the Trust) with the Commission are incorporated by reference into
this Registration Statement:
(1)
The Trusts Annual Report on Form 10-K
for the year ended December 31, 2007, filed with the Commission on March 14,
2008, and related Annual Report on Form 10-K/A, filed with the Commission
on March 27, 2008;
(2)
The Trusts Current Reports on Form 8-K,
filed with the Commission on February 12, 2008, February 14, 2008, February 29,
2008 and March 25, 2008;
(3)
The description of the Trusts common shares
of beneficial interest, par value $.001 per share, contained in the Trusts
Registration Statement on Form 8-A filed with the Commission on September 2,
2004, to register such securities under the Exchange Act.
All reports and other documents subsequently filed
by the Trust pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act, 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 a part hereof from the date of filing of such
documents.
Any statement contained herein or in a document all
or a portion of which is 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.
Experts
Reznick Group, P.C., independent registered
public accounting firm, has audited the consolidated balance sheets of GMH
Communities Trust as of December 31, 2007 and 2006, and the related
consolidated statements of operations, beneficiaries equity and cash flows for
the years ended December 31, 2007 and 2006, as included in the Trusts
Annual Report on Form 10-K for the year ended December 31, 2007,
and as set forth in its reports thereon which are incorporated by
reference herein. These financial statements are incorporated by reference
herein in reliance on the report of Reznick Group, P.C., given on their
authority as experts in accounting and auditing. Audited financial statements
of
2
the Trust to be included in
subsequently filed documents will be incorporated herein in reliance upon the
reports of Reznick Group, P.C. pertaining to such financial statements (to
the extent covered by consents filed with the Commission) given on the
authority of such firm as experts in accounting and auditing.
Ernst & Young LLP, independent
registered public accounting firm, has audited the consolidated financial
statements and schedules of GMH Communities Trust for the year ended December 31,
2005, as included in the Trusts Annual Report on Form 10-K for the year
ended December 31, 2007, as set forth in its report thereon which is
incorporated by reference herein. These financial statements and schedules are
incorporated by reference herein in reliance on Ernst & Young LLPs
report, given on their authority as experts in accounting and auditing.
Item 4.
Description of Securities.
The $10.0 million of deferred compensation
obligations (the Obligations) being registered under this Registration
Statement may be offered to certain eligible employees of a subsidiary of the
Trust, GMH Military Housing
Management LLC (GMH Military Housing Management), pursuant to the
GMH Military Housing Management LLC
Non-Qualified Deferred Compensation Plan (the Plan). The eligible
employees will consist of certain management and highly compensated employees
determined to be eligible under the Plan by the Plans Administrative Committee
(the Committee).
The Obligations are general unsecured obligations of
GMH Military Housing Management
to pay deferred compensation in the future in accordance with the terms of the
Plan from the general assets of GMH
Military Housing Management and rank pari passu with other unsecured and
unsubordinated indebtedness of GMH
Military Housing Management from time to time outstanding. GMH Military Housing Management has
established a rabbi trust to hold assets contributed under the Plan. However,
these assets remain general assets of GMH
Military Housing Management and rank pari passu with other unsecured and
unsubordinated indebtedness of GMH
Military Housing Management from time to time outstanding.
Under the Plan, participants may elect to defer a
portion of their base salary, as well as incentive/bonus payments for Plan Year
(generally from January 1 through December 31 of any year), provided
that (i) in order to defer any base salary for a Plan Year, the
participant must defer a minimum of $2,000 of his or her base salary and may
defer up to 15% of his or her base salary in a Plan Year, and (ii) in
order to defer incentive/bonus payments for a Plan Year, the participant must
defer a minimum of $2,000 of his or her incentive/bonus payments and may defer
up to a maximum of 50% of such incentive/bonus payments in a Plan Year.
The amount of compensation deferred by each participant is determined in
accordance with each participants deferral election and the provisions of the
Plan. Participants will be eligible to receive matching contributions into
their deferral accounts from GMH
Military Housing Management if the participant makes the maximum
permissible salary deferral under GMH
Military Housing Managements 401(k) plan in that Plan Year, with
such annual matching contributions equal to 25% of the first 2% of the
participants base salary and incentive/bonus payments deferred for the Plan
Year. Also, the Committee may, in its sole discretion, make an additional
discretionary contribution on behalf of a Plan participant in any amount the
committee desires. The Plan provides for the investment of each participants
deferral account in such investments as are available under the terms of the
Plan and that such participant may elect. Participants are always 100% vested
in their deferral amounts and any matching contributions from GMH Military Housing Management, and
will become vested in any discretionary contributions pursuant to a vesting
schedule, if any, approved by the Committee or immediately upon the participants
death or disability. Upon the occurrence of a change in control (as
defined in the Plan), amounts from deferral accounts may be distributed
to participants within 12 months following the change in control, if GMH Military Housing Management
determines to make such distribution and the distribution is permitted under
applicable law. Participants cannot sell, assign, hypothecate, alienate,
encumber or in any way transfer or convey in advance of receipt any
Obligations. All deferral accounts together with earnings thereon will be
payable upon the termination of the deferral period, retirement, death,
disability or separation of service in a single lump sum or in installments
over a period of up to 15 years in accordance with the terms of the Plan. The
Committee may also approve of a distribution from deferred accounts upon an
unforeseeable financial emergency with respect to a participant.
GMH Military Housing
Management
reserves the
right to amend or terminate the Plan at any time, except that no amendment or
termination may adversely affect the rights of any participant with respect to
amounts to which the participant is entitled prior to the date of amendment or
termination.
3
The Obligations are not convertible into any other
security of GMH Military Housing
Management. The Obligations will not have the benefit of a negative
pledge or any other affirmative or negative covenant of GMH Military Housing Management.
Item 5.
Interests of Named Experts
and Counsel.
Not Applicable.
Item 6.
Indemnification of Trustees
and Officers.
The Maryland REIT Law permits a Maryland real estate
investment trust (REIT) to include in its declaration of trust a provision
limiting the liability of its trustees and officers to the trust 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 as being material to
the cause of action. The Trusts declaration of trust contains a
provision which limits the liability of the Trusts trustees and officers to
the maximum extent permitted by Maryland law.
The Trusts declaration of trust authorizes the
Trust to obligate itself, to the maximum extent permitted by Maryland law, to
indemnify and to pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to (a) any present or former trustee or
officer or (b) any individual who, while a trustee or officer and at the
Trusts request, serves or has served another real estate investment trust,
corporation, partnership, joint venture, trust, employee benefit plan or any
other enterprise as a trustee, director, officer or partner of such real estate
investment trust, corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise from and against any claim or liability to
which such person may become subject or which such person may incur by reason
of his status as a present or former trustee or officer of the Trust or his or
her service in any of the capacities set forth in clause (b) above.
The Trusts bylaws obligate it, to the maximum extent permitted by Maryland
law, to indemnify and to pay or reimburse reasonable expenses in advance of
final disposition of a proceeding to (a) any present or former trustee or
officer who is made a party to the proceeding by reason of his service in that
capacity or (b) any individual who, while a trustee or officer of the
Trust and at the Trusts request, serves or has served another real estate
investment trust, corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise and who is made a party to the proceeding by
reason of his service in that capacity, against any claim or liability to which
he may become subject by reason of such status. The Trusts declaration
of trust and bylaws also permit it to indemnify and advance expenses to any
person who served a predecessor of the Trust in any of the capacities described
above and to any employee or agent of the Trust or a predecessor of the
Trust. Maryland law requires the Trust to indemnify a trustee or officer
who has been successful, on the merits or otherwise, in the defense of any
proceeding to which he is made a party by reason of his service in that
capacity.
The Maryland REIT Law permits a Maryland REIT to
indemnify and advance expenses to its trustees, officers, employees and agents
to the same extent as permitted by the Maryland General Corporation Law (the MGCL)
for directors and officers of Maryland corporations. The MGCL permits a
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 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 a 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, a Maryland corporation may not
indemnify for an adverse judgment in a suit by or in the right of the
corporation or if the trustee or officer was adjudged to be liable for an
improper personal benefit unless in each case a court orders indemnification
and then only for expenses. In accordance with the MGCL and the Trusts
bylaws, the bylaws require the Trust, as a condition to advancing expenses, to
obtain (a) a written affirmation by the trustee or officer of his good
faith belief that he has met the standard of conduct necessary for
indemnification and (b) a written statement by him or on his behalf to
repay the amount paid or reimbursed by us if it shall ultimately be determined
that the standard of conduct was not met.
4
Item 7.
Exemption from Registration
Claimed.
Not Applicable.
Item 8.
Exhibits.
Exhibit
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Description
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4.1
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GMH
Military Housing Management LLC Non-Qualified Deferred Compensation Plan.
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5.1
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Opinion
of Reed Smith LLP.
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23.1
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Consent
of Reznick Group, P.C.
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23.2
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Consent
of Ernst & Young LLP.
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24.1
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Powers
of Attorney (included on Signature Page of this Registration Statement).
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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 the 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; and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
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, Form S-8 or Form F-3, 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
Commission by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 (the Exchange Act) that are
incorporated by reference in this 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.
5
(b)
The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act, each
filing of the registrants annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plans 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)
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.
6
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 this Registration
Statement on Form S-8 and has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in
Newtown Square, Commonwealth of Pennsylvania, on the 2nd day of April, 2008.
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GMH
Communities Trust
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By:
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/s/
Gary M. Holloway
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Gary
M. Holloway
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Chairman,
President and Chief Executive Officer
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KNOW ALL MEN BY THESE PRESENTS, that each person
whose signature appears below hereby constitutes and appoints J. Patrick OGrady
and Joseph M. Macchione, his true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
any other documents in connection therewith, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act
of 1933, as amended, this Registration Statement has been signed below by the
following individuals in the capacities and on the dates indicated.
/s/ Gary M. Holloway
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President,
Chief Executive
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April 2, 2008
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Gary
M. Holloway
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Officer
and Chairman of the
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Board
of Trustees (Principal
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Executive
Officer)
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/s/ J. Patrick OGrady
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Executive
Vice President and
Chief Financial Officer
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April 2, 2008
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J.
Patrick OGrady
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(Principal
Financial
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Officer)
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/s/
Bruce F. Robinson
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President
Military Housing
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April 2, 2008
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Bruce
F. Robinson
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Business
and Trustee
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/s/
Frederick F. Buchholz
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Trustee
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April 2, 2008
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Frederick
F. Buchholz
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/a/
James W. Eastwood
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Trustee
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April 2, 2008
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Adm.
James W. Eastwood, Ret.
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/s/
Michael D. Fascitelli
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Trustee
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April 2, 2008
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Michael
D. Fascitelli
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/s/
Steven J. Kessler
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Trustee
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April 2, 2008
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Steven
J. Kessler
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/s/
Denis J. Nayden
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Trustee
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April 2, 2008
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Denis
J. Nayden
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/s/
Dennis J. OLeary
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Trustee
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April 2, 2008
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Dennis
J. OLeary
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/s/
Richard A. Silfen
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Trustee
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April 2, 2008
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Richard
A. Silfen
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7
Exhibit
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Description
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4.1
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GMH
Military Housing Management LLC Trust Non-Qualified Deferred Compensation
Plan.
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5.1
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Opinion
of Reed Smith LLP.
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23.1
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Consent
of Reznick Group, P.C.
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23.2
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Consent
of Ernst & Young LLP.
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24.1
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Powers
of Attorney (included on Signature Page of this Registration Statement).
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8
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