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EXHIBIT 1.5
MEDITRUST
Shares of Beneficial Interest
without par value
SALES AGENCY AGREEMENT
____________, 1995
[Name and Address of Agent]
Gentlemen:
Meditrust, a Massachusetts business trust (the "Company"), confirms its
agreement with _____________ (the "Agent"), as follows:
SECTION 1. Description of Securities. The Company proposes to issue and
sell through the Agent, as exclusive sales agent, up to ___________ shares (the
"Maximum Amount") of beneficial interest, without par value (the "Stock"), on
the terms set forth in Section 3 hereof.
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Agent that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and the rules and regulations ("Rules and
Regulations") of the Securities and Exchange Commission (the "Commission"). A
registration statement on Form S-3 (Registration No. 33-_____) with respect to,
among other securities, the Stock, including a form of prospectus, has been
prepared by the Company in conformity with the requirements of the Act and the
Rules and Regulations thereunder and filed with the Commission and has become
effective. Such registration statement and prospectus may have been amended or
supplemented prior to the date of this Agreement. Any such amendment or
supplement was so prepared and filed, and any such amendment or supplement filed
after the effective date of such registration statement has become effective. No
stop order suspending the effectiveness of the registration statement has been
issued, and no proceeding for that purpose has been instituted or threatened by
the Commission. Copies of such registration statement and prospectus, any such
amendment or supplement relating to the Stock and all documents incorporated by
reference therein that were filed with the Commission on or prior to the date of
this Agreement have been delivered to the Agent. Such registration statement, as
it may have heretofore been amended, is referred to herein as the "Registration
Statement," and the final form of prospectus included in the Registration
Statement, as amended or
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supplemented from time to time, is referred to herein as the "Prospectus." Any
reference herein to the Registration Statement, the Prospectus, or any amendment
or supplement thereto shall be deemed to refer to and include the documents
incorporated (or deemed to be incorporated) by reference therein, and any
reference herein to the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement or Prospectus shall be deemed to refer to and
include the filing after the date hereof of any document with the Commission
deemed to be incorporated by reference therein.
(b) Each part of the Registration Statement, when such part became or
becomes effective, and the Prospectus and any amendment or supplement thereto,
on the date of filing thereof with the Commission and at each Closing Date (as
hereinafter defined), conformed or will conform in all material respects with
the requirements of the Act and the Rules and Regulations; each part of the
Registration Statement, when such part became or becomes effective, did not or
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at each Closing
Date, did not or will not include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; except that the
foregoing shall not apply to statements in or omissions from any such document
in reliance upon, and in conformity with, written information furnished to the
Company by or on behalf of the Agent, specifically for use in the Registration
Statement, the Prospectus or any amendment or supplement thereto.
(c) The documents incorporated by reference in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, when they
became or become effective under the Act or were or are filed with the
Commission under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), as the case may be, conformed or will conform in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder.
(d) The financial statements of the Company and its subsidiaries,
together with the related notes and schedules, set forth or incorporated by
reference in the Registration Statement and Prospectus fairly present the
financial condition and the results of operations and cash flows of the Company
and its subsidiaries as of the dates indicated or for the periods therein
specified and were prepared in conformity with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein).
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(e) The Company has been duly organized and is validly existing as a
business trust in good standing under the laws of the Commonwealth of
Massachusetts with power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and
Prospectus; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify and
be in good standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(f) Each subsidiary of the Company (the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation or limited partnership in
good standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and Prospectus
and is duly qualified as a foreign corporation or limited partnership to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify and
be in good standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise; and all of the
issued and outstanding capital stock of each corporate Subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and (except as
otherwise stated in the Registration Statement) is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(g) The outstanding shares of beneficial interest of the Company and
the Stock have been duly authorized and are, or when issued as contemplated
hereby will be, validly issued, fully paid and nonassessable and conform, or
when so issued will conform, to the description thereof in the Prospectus. The
shareholders of the Company have no preemptive rights with respect to the Stock.
(h) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, neither the Company nor any of its Subsidiaries has incurred
any liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that are material to the
Company and its Subsidiaries considered as a whole, and there has not been any
material change in the capital
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stock, short-term debt or long-term debt of the Company and its Subsidiaries, or
any material change, or any development involving a prospective material change,
in the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as one
enterprise.
(i) Except as set forth in the Prospectus, there is not pending or, to
the knowledge of the Company, threatened any action, suit or proceeding to which
the Company or any of its Subsidiaries is a party, before or by any court or
governmental agency or body, that could reasonably be expected to result in any
material adverse change in the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or that could reasonably be expected
to materially and adversely affect the properties or assets thereof considered
as a whole.
(j) There are no contracts or documents of the Company or any of its
Subsidiaries that are required to be filed as exhibits to the Registration
Statement or to any of the documents incorporated by reference therein by the
Act or the Exchange Act or by the rules and regulations of the Commission
thereunder that have not been so filed.
(k) All necessary action has been duly and validly taken by the Company
to authorize the execution, delivery and performance of this Agreement. This
Agreement has been duly and validly authorized, executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
(l) The performance of this Agreement and the consummation of the
transactions contemplated herein or therein will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any statute, any agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it is bound or to which any of the property
of the Company or any of its Subsidiaries is subject, the Company s charter or
by-laws, or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its Subsidiaries or any of
its properties; no consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such as have
been obtained
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or completed or as may be required by state securities or blue sky laws.
(m) Each of the Company and its Subsidiaries has (i) good and
marketable title to all of the properties and assets described in the Prospectus
as owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Prospectus or are not material
to the business, condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, (ii) peaceful and undisturbed possession under all leases to
which it is party as lessee, (iii) all governmental or regulatory licenses,
certificates, permits, authorizations, approvals, franchises or other rights
necessary to engage in the business currently conducted by it, except such as
are not material to the business, condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, (iv) no reason to believe that any
governmental body or agency is considering limiting, suspending or revoking any
such license, certificate, permit, authorization, approval, franchise or right
and (v) not received any notice of and has no reason to believe that any
governmental body or agency is considering enacting, amending or repealing any
statute, law, ordinance or regulation required to be described in the
Registration Statement and Prospectus that is not so described as required. All
material leases to which the Company or any of its Subsidiaries is a party are
valid and binding and no default has occurred and is continuing thereunder, and,
to the best knowledge of the Company, no material defaults by the landlord are
existing under any such leases.
(n) Each of the Company and its Subsidiaries owns or possesses all of
the patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and
trade names presently employed by them in connection with the business now
operated by them, and neither the Company nor any of its Subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing which, if singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(o) The Company and its Subsidiaries have not violated and are in
compliance with all material laws, statutes, ordinances, regulations, rules and
orders of any foreign, federal, state or local government and any other
governmental department or agency,
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and any judgment, decision, decree or order of any court or governmental agency,
department or authority, including, without limitation, environmental laws.
Neither the Company nor any of its Subsidiaries has received any notice to the
effect that, or otherwise been advised that, it is not in compliance with any
such statutes, regulations, rules, judgments, decrees, orders, ordinances or
other laws, and the Company is not aware of any existing circumstances which are
likely to result in violations of any of the foregoing.
SECTION 3. Sale and Delivery of Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to issue and sell
exclusively through the Agent, and the Agent agrees to sell, as exclusive sales
agent for the Company, on a best efforts basis, up to the Maximum Amount of
Stock during 52 Pricing Periods (as hereinafter defined) on the terms set forth
herein.
The Stock, up to the Maximum Amount, is to be sold during one or more
pricing periods (each a "Pricing Period"), each Pricing Period consisting of
five consecutive calendar days or such lesser number of days as shall be agreed
to by the Company and the Agent. The Company and the Agent from time to time
will designate Pricing Period(s) and the number of shares of Stock (not to
exceed ____ shares) to be sold by the Agent during each such Pricing Period (the
"Average Market Price Shares"). Subject to the terms and conditions hereof, the
Agent shall use its best efforts to (i) sell all of the designated Average
Market Price Shares during each such Pricing Period, and (ii) sell the entire
Maximum Amount. The Agent shall sell the shares of Stock only by means of
ordinary brokers transactions on the New York Stock Exchange (the "NYSE"). The
Agent shall not solicit or arrange for the solicitation of customers' orders in
anticipation of or in connection with such transactions, nor shall they sell
short as principal shares of Stock of the Company except in connection with
customary market making activities in the Company's outstanding securities. The
Agent shall not engage in any special selling efforts or selling methods
relating to the Stock within the meaning of Rule 10b-6(c)(5) under the Exchange
Act. The Company or the Agent may, upon notice to the other party hereto by
telephone (confirmed promptly by telecopy), suspend or terminate the offering of
Stock during any Pricing Period; provided, however, that such suspension or
termination shall not affect or impair the parties respective obligations with
respect to shares of Stock sold hereunder prior to the giving of such notice.
The net proceeds (the "Net Proceeds") to the Company for the Average
Market Price Shares sold by the Agent during a Pricing Period will equal the sum
of (i) the product of (x) ___% times (y) the average of the arithmetic mean of
the high and low sales
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prices of the shares of beneficial interest of the Company reported on the NYSE
for each trading day of such Pricing Period (the "Average Market Price"), times
(z) the number of Average Market Price Shares sold during such Pricing Period
plus (ii) Alternative Proceeds (defined below), if any, plus (iii) Excess
Proceeds (defined below), if any. Subject to adjustment as set forth in the
following two paragraphs, the compensation to the Agent with respect to the sale
of Average Market Price Shares sold hereunder shall equal the difference between
the aggregate gross sales prices at which such sales are actually effected by
the Agent and the Net Proceeds.
To the extent that the compensation payable to the Agent hereunder
would otherwise exceed ten percent of the aggregate gross sales prices of the
Average Market Price Shares during any Pricing Period, such excess over ten
percent shall constitute "Excess Proceeds" payable to the Company.
During any Pricing Period, the Company may instruct the Agent by
telephone (confirmed promptly by telecopy) not to sell shares of Stock if such
sales cannot be effected at or above the price designated by the Company in any
such instruction. If such an instruction is given and as a result thereof the
Agent is unable to sell shares of Stock in an amount greater than or equal to
the daily pro rata portion of Average Market Price Shares to be sold during such
Pricing Period, then (i) that day's high and low executed sales price of shares
of beneficial interest of the Company reported on the NYSE shall not be included
in the calculation of Average Market Price and (ii) the net proceeds payable to
the Company (the "Alternative Proceeds") and the compensation payable to the
Agent in respect of any sales of Average Market Price Shares effected that day
(the "Alternative Shares") by the Agent shall be equal to ___% and ___%,
respectively, of the weighted average sales prices at which the Agent has
actually effected sales of Stock during that day and the Alternative Shares
shall not be deemed to be Average Market Price Shares sold during a Pricing
Period.
During any Pricing Period, the Company and the Agent may agree upon the
sale of shares ("Additional Shares") of Stock in addition to the sale of Average
Market Price Shares (such Additional Shares to be included in the Maximum
Amount). The compensation to the Agent for sales of Additional Shares shall be,
with respect to any Pricing Period, ___% of the gross sales price per share in
connection with Additional Shares in any Pricing Period. The sale of Additional
Shares sold during any day shall be confirmed in writing by the Agent to the
Company following the end of the Pricing Period. All other shares sold during a
Pricing Period not so confirmed shall be deemed Average Market Price Shares.
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The Agent shall provide written confirmation to the Company following
the close of business on the final day of each Pricing Period setting forth,
with regard to such Pricing Period, the dates included in the Pricing Period,
the number of Average Market Price Shares and Additional Shares, if any, sold,
the gross proceeds from the sale of such shares, the highest and lowest executed
sales price at which such shares were sold, the Net Proceeds to the Company, the
amount of Excess Proceeds, if any, the amount of Alternative Proceeds, if any,
the compensation payable by the Company to the Agent with respect to such sales
and the Average Market Price for such Pricing Period.
Settlement for sales of Additional Shares will occur on the third
business day following the date on which such sales are made. The amount of
proceeds for such sales to be delivered to the Company against the receipt of
the Additional Shares sold shall be equal to the aggregate sales prices at which
such Additional Shares were sold, net of the Agent's compensation for such sales
and after deduction for any transaction fees imposed by any governmental or
self-regulatory organization in respect of such sales. Settlement for sales of
Average Market Price Shares will also occur on the third business day following
the date on which such sales are made. On the third business day following the
end of a Pricing Period, the Average Market Price Shares sold through the Agent
on the last business day of such Pricing Period will be delivered by the Company
to the Agent against payment of the proceeds for the sale of such Average Market
Price Shares less the total compensation to the Agent for the sale of Average
Market Price Shares for such Pricing Period. Settlement for all shares shall be
effected via The Depository Trust Company on a delivery-versus-payment basis.
At the time of each settlement of securities hereunder, the Company
shall be deemed to have affirmed each representation, warranty, covenant and
other agreement contained in this Agreement and on each Closing Date, the
Company shall affirm in writing each representation, warranty, covenant and
other agreement contained in this Agreement. The Company covenants and agrees
with the Agent that within two (2) business days of the termination of each
Pricing Period, the Company will file a prospectus supplement under the
applicable paragraph of Rule 424(b) under the Act, which prospectus supplement
will set forth, with regard to such Pricing Period, the dates included within
the Pricing Period, the number of shares of Stock sold through the Agent
(separately identifying the number of Average Market Price Shares), the high and
low prices at which Average Market Price Shares were sold, the Net Proceeds to
the Company and the compensation payable by the Company to the Agent with
respect to sales of Average Market Price Shares (all as provided in writing by
the Agent for inclusion in each such prospectus supplement). Any obligation of
the Agent to use its best efforts to sell the Stock shall be subject to the
continuing accuracy of
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the representations and warranties of the Company herein, to the performance by
the Company of its obligations hereunder and to the continuing satisfaction of
the additional conditions specified in Section 5 of this Agreement.
SECTION 4. Covenants of the Company. The Company covenants and agrees
with the Agent that:
(a) During the period in which a prospectus relating to the Stock is
required to be delivered under the Act, the Company will notify the Agent
promptly of the time when any subsequent amendment to the Registration Statement
has become effective or any subsequent supplement to the Prospectus has been
filed and of any request by the Commission for any amendment or supplement to
the Registration Statement or Prospectus or for additional information; the
Company will not file any amendment or supplement to the Registration Statement
or Prospectus (other than any prospectus supplement relating to the offering of
other securities registered under the Registration Statement) unless a copy
thereof has been submitted to you a reasonable period of time before the filing
and you have not reasonably objected thereto; and it will furnish to the Agent
prior to the filing thereof a copy of any document that upon filing is deemed to
be incorporated by reference in the Registration Statement or Prospectus; and
the Company will cause each amendment or supplement to the Prospectus to be
filed with the Commission as required pursuant to the applicable paragraph of
Rule 424(b) of the Rules and Regulations or, in the case of any document to be
incorporated therein by reference, to be filed with the Commission as required
pursuant to the Exchange Act, within the time period prescribed.
(b) The Company will advise the Agent, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Stock for offering or sale in any
jurisdiction, or of the initiation or threatened initiation of any proceeding
for any such purpose; and it will promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a stop order
should be issued.
(c) Within the time during which a prospectus relating to the Stock is
required to be delivered under the Act, the Company will comply as far as it is
able with all requirements imposed upon it by the Act and by the Rules and
Regulations, as from time to time in force, so far as reasonably necessary to
permit the continuance of sales of or dealings in the Stock as contemplated by
the provisions hereof and the Prospectus. If during such period any event occurs
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state a material fact
necessary to
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make the statements therein, in the light of the circumstances then existing,
not misleading, or if during such period it is necessary to amend or supplement
the Registration Statement or Prospectus to comply with the Act, the Company
will promptly notify the Agent to suspend the offering of Stock during such
period and the Company will amend or supplement the Registration Statement or
Prospectus (at the expense of the Company) so as to correct such statement or
omission or effect such compliance.
(d) The Company will use its best efforts to qualify the Stock for sale
under the securities laws of such jurisdictions as the Agent designates and to
continue such qualifications in effect so long as required for the distribution
of the Stock, except that the Company shall not be required in connection
therewith to qualify as a foreign entity or to execute a general consent to
service of process in any jurisdiction.
(e) The Company will furnish to the Agent and its counsel (at the
expense of the Company) copies of the Registration Statement, the Prospectus
(including all documents incorporated by reference therein) and all amendments
and supplements to the Registration Statement or Prospectus that are filed with
the Commission during the period in which a prospectus relating to the Stock is
required to be delivered under the Act (including all documents filed with the
Commission during such period that are deemed to be incorporated by reference
therein), in each case as soon as available and in such quantities as you may
from time to time reasonably request and will also furnish copies of the
Prospectus to the NYSE in accordance with Rule 153 of the Rules and Regulations.
(f) The Company will make generally available to its security holders
as soon as practicable, but in any event not later than 15 months after the end
of the Company s current fiscal quarter, an earnings statement (which need not
be audited) covering a 12-month period that satisfies the provisions of Section
11(a) of the Act and Rule 158 of the Rules and Regulations.
(g) The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, will pay all expenses incident
to the performance of its obligations hereunder (including, but not limited to,
any transaction fees imposed by any governmental or self-regulatory organization
with respect to transactions contemplated by this Agreement), will pay the
expenses of printing all documents relating to the offering, and will reimburse
the Agent from time to time upon request for its out-of-pocket costs and
expenses incurred in connection with the entering into of this Agreement and the
transactions contemplated by this Agreement, including, without limitation,
travel, reproduction, printing and similar
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expenses, as well as reasonable fees and disbursements of legal counsel retained
by the Agent.
(h) The Company acknowledges that the Structured Equity Shelf ("SES")
described herein is proprietary to the Agent and agrees not to engage any other
party (other than Nutter, McClennen & Fish ("NMF") or Coopers & Lybrand L.L.P.)
to provide advice in respect of or otherwise act as sales agent or underwriter
for any offering of securities involving SES or any similar method of offering
for a period of one year from the date hereof.
(i) The Company will apply the net proceeds from the sale of the Stock
as set forth in the Prospectus.
(j) The Company will not, directly or indirectly, offer or sell, any
shares of beneficial interest (other than the Stock and shares of beneficial
interest issuable pursuant to the Company's equity incentive plans or upon
conversion of outstanding convertible debt) or securities convertible into or
exchangeable for, or any rights to purchase or acquire, shares of beneficial
interest (other than such rights issued under the Company's equity incentive
plans during the period from the date of this Agreement through the final
Closing Date for the sale of Stock hereunder without giving the Agent at least
three business days prior written notice specifying the nature of the proposed
sale and the date of such proposed sale.
(k) The Company will, at any time during the term of this Agreement, as
supplemented from time to time, advise the Agent immediately after it shall have
received notice or obtain knowledge thereof, of any information or fact that
would alter or affect any opinion, certificate, letter and other document
provided to the Agent pursuant to Section 5 herein.
(l) Each time that (i) the Registration Statement or the Prospectus
shall be amended or supplemented (other than a supplement filed pursuant to Rule
424(b) under the Act that contains solely the information set forth in the final
paragraph of Section 3 of this Agreement or that does not relate to the Stock)
or (ii) there is filed with the Commission any document incorporated by
reference into the Prospectus (other than any proxy statement, Annual Report on
Form 10-K, Quarterly Report on Form 10-Q or a Current Report on Form 8-K, unless
the Agent shall otherwise specify), the Company shall furnish or cause to be
furnished to the Agent forthwith a certificate dated the date of filing with the
Commission of such amendment, supplement or other document, the date of
effectiveness of amendment, as the case may be, in form satisfactory to the
Agent to the effect that the statements contained in the certificate referred to
in Section 5(f) hereof which were last furnished to the Agent are true and
correct at the time of such amendment, supplement or
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filing, as the case may be, as though made at and as of such time (except that
such statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
said Section 5(f), modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
certificate.
(m) Each time that (i) the Registration Statement or the Prospectus is
amended or supplemented (other than a supplement filed pursuant to Rule 424(b)
under the Act that contains solely the information set forth in the final
paragraph of Section 3 of this Agreement or that does not relate to the Stock)
or (ii) there is filed with the Commission any document incorporated by
reference into the Prospectus (other than any proxy statement, Annual Report on
Form 10-K, Quarterly Report on Form 10-Q or a Current Report on Form 8-K, unless
the Agent shall otherwise specify), the Company shall furnish or cause to be
furnished forthwith to the Agent and to counsel to the Agent a written opinion
of NMF, or other counsel satisfactory to the Agent, dated the date of filing
with the Commission of such amendment, supplement or other document and the date
of effectiveness of such amendment, as the case may be, in form and substance
satisfactory to the Agent, of the same tenor as the opinion referred to in
Section 5(d) hereof, but modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such opinion.
(n) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented to include additional amended financial information
or there is filed with the Commission any document incorporated by reference
into the Prospectus which contains additional amended financial information
(other than by an amendment or supplement resulting from the filing by the
Company of a Current Report in Form 8-K, unless in the Agent's reasonable
judgment, such Current Report is of such a nature that a letter from the
Company's independent public accountant should be furnished) the Company shall
cause Coopers & Lybrand L.L.P. forthwith to furnish the Agent a letter, dated
the date of effectiveness of such amendment, or the date of filing of such
supplement or other document with the Commission, as the case may be, in form
satisfactory to the Agent, of the same tenor as the letter referred to in
Section 5(e) hereof but modified to relate to the Registration Statement and the
Prospectus, as amended and supplemented to the date of such letter.
SECTION 5. Conditions of Agent's Obligations. The obligations of the
Agent to sell the Stock as provided herein shall be subject to the accuracy, as
of the date hereof, and as of each Closing Date for any Pricing Period
contemplated under this Agreement, of the representations and warranties of the
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Company herein, to the performance by the Company of its obligations hereunder
and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or the Agent, threatened by
the Commission, and any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to the Agent's satisfaction.
(b) The Agent shall not have advised the Company that the Registration
Statement or Prospectus, or any amendment or supplement thereto, contains an
untrue statement of fact that in the Agent's opinion is material, or omits to
state a fact that in the Agent s opinion is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there shall not have been any material change, on a
consolidated basis, in the capital stock of the Company and its subsidiaries, or
any material adverse change, or any development involving a prospective adverse
change, in the condition (financial or other), business, prospects, net worth or
results of operations of the Company and its subsidiaries, or any change in the
rating assigned to any securities of the Company.
(d) The Agent shall have received at the date of the commencement of
the first Pricing Period hereunder (the "Commencement Date") and at every other
date specified in Section 4(m) hereof, opinions of NMF, counsel for the Company,
dated as of the Commencement Date and dated as of such other date, respectively,
in substantially the form attached hereto as Annex I.
(e) At or prior to the Commencement Date and at such other dates
specified in Section 4(n) hereof, the Agent shall have received a letter from
Coopers & Lybrand L.L.P., independent public accountants for the Company, dated
the date of delivery thereof, substantially in the form attached hereto as Annex
II and otherwise in form and substance satisfactory to Agent.
(f) The Agent shall have received from the Company a certificate, or
certificates, signed by the Chairman of the Board, the President or a Vice
President and by the principal financial or accounting officer of the Company,
dated as of the Commencement Date and dated as of each Closing Date contemplated
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by this Agreement, to the effect that, to the best of their knowledge based upon
reasonable investigation:
(i) The representations and warranties of the Company in this
Agreement are true and correct, as if made at and as of the
Commencement Date or the Closing Date for such Pricing Period (as the
case may be), and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Commencement Date and each such Closing Date (as the
case may be);
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or is threatened, by the Commission;
(iii) Since the date of this Agreement there has occurred no
event required to be set forth in an amendment or supplement to the
Registration Statement or Prospectus that has not been so set forth and
there has been no document required to be filed under the Exchange Act
and the rules and regulations of the Commission thereunder that upon
such filing would be deemed to be incorporated by reference in the
Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, there has not been any
material adverse change, on a consolidated basis, in the business,
financial condition or results of operations of the Company and its
subsidiaries which has not been described in an amendment or supplement
to the Registration Statement or Prospectus (directly or by
incorporation).
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Agent. The Company will furnish the Agent with such
conformed copies of such opinions, certificates, letters and other documents as
the Agent shall reasonably request.
SECTION 6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Agent and
each person, if any, who controls the Agent within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any
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amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus relating to the Stock to be sold hereunder
or the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements
of counsel chosen by the Agent), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agent expressly for use in the Registration Statement (or any amendment thereto)
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) The Agent agrees to indemnify and hold harmless the Company and its
trustees and each officer of the Company, and each person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendments thereto) or any preliminary prospectus or the Prospectus (or any
amendment or
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supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by the Agent expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) Any indemnified party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or parties under this Section 6, notify
each such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying party
will not relieve it from (i) any liability that it might have to any indemnified
party otherwise than under this Section 6 and (ii) any liability that it may
have to any indemnified party under the foregoing provision of this Section 6
unless, and only to the extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party. If any such action is
brought against any indemnified party and it notifies the indemnifying party of
its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified
party promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel satisfactory to the
indemnified party, and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party
will not be liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (2)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It
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is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm admitted to practice in such jurisdiction at any one time for all
such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent will not be
unreasonably withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Agent, the Company
and the Agent will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted, but after deducting any
contribution received from persons other than the parties hereto, who also may
be liable for contribution) to which the Company and any one or more of the
Agent may be subject in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the Agent on the
other. The relative benefits received by the Company on the one hand and the
Agent on the other hand shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total compensation (before deducting expenses) received
by the Agent from the sale of Stock on behalf of the Company. If, but only if,
the allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such proportion
as is appropriate to reflect not only the relative benefits referred to in the
foregoing sentence but also the relative fault of the Company, on the one hand,
and the Agent, on the other, with respect to the statements or omission which
resulted in such loss, claim, liability, expense or damage, or action in
respect thereof, as well as any other relevant equitable considerations with
respect to such offering. Such relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Agent, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission.
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The Company and the Agent agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in this Section 6(d)
shall be deemed to include, for the purpose of this Section 6(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provision of this Section 6(d), the Agent shall not be required to contribute
any amount in excess of the amount by which the total actual sales price at
which Stock sold by the Agent exceeds the amount of any damages that the Agent
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6(d), any person who
controls a party to this Agreement within the meaning of the Act will have the
same rights to contribution as that party, and each officer of the Company who
signed the Registration Statement will have the same rights to contribution as
the Company, subject in each case to the provisions hereof. Any party entitled
to contribution, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made
under this Section 6(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve that
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 6(d). No party will be liable for
contribution with respect to any action or claim settled without its written
consent (which consent will not be unreasonably withheld).
SECTION 7. Representations and Agreements to Survive Delivery. All
representations, warranties and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the Agent
contained in Section 6 hereof, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Agent or any
controlling persons, or the Company (or any of their officers, directors or
controlling persons), and shall survive delivery of and payment for the Stock.
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SECTION 8. Termination.
(a) The Agent shall have the right by giving notice as hereinafter
specified at any time at or prior to any Closing Date, to terminate this
Agreement if (i) any material adverse change, or any development involving a
prospective material adverse change, in the business, financial condition or
results of operations of the Company and its subsidiaries has occurred which, in
the reasonable judgment of such Agent, materially impairs the investment quality
of the Stock, (ii) the Company shall have failed, refused or been unable, at or
prior to the Closing Date, to perform any agreement on its part to be performed
hereunder, (iii) any other condition of the Agent s obligations hereunder is not
fulfilled, (iv) any suspension or limitation of trading in the Stock on the
NYSE, or any setting of minimum prices for trading of the Stock on such
exchange, shall have occurred, (v) any banking moratorium shall have been
declared by Federal or New York authorities or (vi) an outbreak or material
escalation of major hostilities in which the United States is involved, a
declaration of war by Congress, any other substantial national or international
calamity or any other event or occurrence of a similar character shall have
occurred since the execution of this Agreement that, in the reasonable judgment
of the Agent, makes it impractical or inadvisable to proceed with the completion
of the sale of and payment for the Stock to be sold by the Agent on behalf of
the Company. Any such termination shall be without liability of any party to any
other party except that the provisions of Section 4(g), Section 6 and Section 7
hereof shall at all times be effective. If the Agent elects to terminate this
Agreement as provided in this Section, the Agent shall provide the required
notice as specified herein.
(b) The Company shall have the right by giving notice as hereinafter
specified, to terminate this Agreement in its sole discretion on the date
occurring sixty (60) days after the date of this Agreement and every sixty (60)
days thereafter.
(c) Any termination of this Agreement shall be effective on the date
specified in such notice of termination; provided that such termination shall
not be effective until the close of business on the date of receipt of such
notice by the Agent or the Company, as the case may be. If such termination
shall occur during a Pricing Period, any Additional Shares and Average Market
Price Shares shall settle in accordance with the provisions of the second to
last paragraph of Section 3 hereof.
SECTION 9. Notices. All notices or communications hereunder shall be in
writing and if sent to the Agent shall be mailed, delivered, telexed or
telecopied and confirmed to the Agent at ___________________________________, or
if sent to the Company, shall be mailed, delivered, telexed or telecopied and
confirmed to the Company at 197 First Avenue, Needham Heights,
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Massachusetts 02194, Attention: David F. Benson, President. Each party to this
Agreement may change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose.
SECTION 10. Parties. This Agreement shall inure to the benefit of and
be binding upon the Company and the Agent and their respective successors and
the controlling persons, officers and directors referred to in Section 6 hereof,
and no other person will have any right or obligation hereunder.
SECTION 11. Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all other prior and contemporaneous agreements and
undertakings, both written and oral, among the parties hereto with regard to the
subject matter hereof.
SECTION 12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 13. Limitation of Liability. The Declaration of Trust
Establishing the Company, dated August 6, 1985, as amended (the "Declaration"),
a copy of which is duly filed in the office of the Secretary of State of the
Commonwealth of Massachusetts, provides that the name "Meditrust" refers to the
Trustees under the Declaration collectively as Trustees, but not individually or
personally; and that no Trustee, officer, shareholder, employee or agent of the
Company shall be held to any personal liability, jointly or severally, for any
obligation of, or claim against, the Company. All persons dealing with the
Company, in any way, shall look only to the assets of the Company for the
payment of any sum or the performance of any obligation.
SECTION 14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth the understanding between the
Company and the Agent, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Company and the Agent. Alternatively, the execution of this Agreement by the
Company and its acceptance by or on behalf of the Agent may be evidenced by an
exchange of telegraphic or other written communications.
Very truly yours,
MEDITRUST
By:
Title:
ACCEPTED as of the date
first above written
[Name of Agent]
By:
Title:
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