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As filed with the Securities and Exchange Commission
on September 29, 1995
Registration No. 33-62293
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
MEDITRUST
(Exact name of registrant as specified in governing instruments)
MASSACHUSETTS 04-6532031
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
197 First Avenue
Needham Heights, Massachusetts 02194
(617) 433-6000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
_______________
ABRAHAM D. GOSMAN
Chairman and Chief Executive Officer
MEDITRUST
197 First Avenue
Needham Heights, Massachusetts 02194
(617) 433-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of communications to:
MICHAEL J. BOHNEN, ESQUIRE
NUTTER, McCLENNEN & FISH
One International Place
Boston, MA 02110-2699
(617) 439-2000
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of the Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than the securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
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If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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SUBJECT TO COMPLETION, DATED ________________
PROSPECTUS
MEDITRUST
Shares of Beneficial Interest,
Debt Securities and/or Securities Warrants
_______________
Meditrust, a Massachusetts business trust (together with its
subsidiaries unless the context otherwise requires, the "Company"), is a real
estate investment trust under the Internal Revenue Code of 1986, as amended,
which may offer from time to time, in one or more series, its debt securities
(the "Debt Securities"), warrants to purchase Debt Securities (the "Debt
Securities Warrants"), shares of beneficial interest, without par value (the
"Shares"), and warrants to purchase Shares (the "Share Warrants"). The Debt
Securities Warrants and the Share Warrants are collectively referred to herein
as the "Securities Warrants." The Debt Securities, Shares and Securities
Warrants are collectively referred to herein as the "Securities." The
Securities will have an aggregate offering price of $300,000,000 and will be
offered in amounts, at prices and on terms to be determined at the time of
offering.
In the case of Debt Securities, the specific title, the aggregate
principal amount, the purchase price, the maturity, the rate and time of
payment of any interest, any redemption or sinking fund provisions, any
conversion provisions and any other specific term of the Debt Securities will
be set forth in an accompanying supplement to this Prospectus (the "Prospectus
Supplement"). In the case of Shares, the specific number of Shares and
issuance price per Share will be set forth in an accompanying Prospectus
Supplement. In the case of Securities Warrants, the duration, offering price,
exercise price and detachability, if applicable, will be set forth in an
accompanying Prospectus Supplement. The Prospectus Supplement will also
disclose whether the Securities will be listed on a national securities
exchange and if they are not to be listed, the possible effects thereof on
their marketability.
The Securities may be sold: (i) directly by the Company; (ii) through
underwriting syndicates represented by one or more managing underwriters, or by
one or more underwriters without a syndicate; and (iii) through agents
designated from time to time. The names of any underwriters or agents of the
Company involved in the sale of the Securities in respect of which this
Prospectus is being delivered and any applicable commissions or discounts will
be set forth in an accompanying Prospectus Supplement. See "Plan of
Distribution." The net proceeds to the Company from such sale also will be set
forth in the Prospectus Supplement.
The Company's shares are traded on the New York Stock Exchange under
the symbol "MT." On September 28, 1995, the closing sale price of the Shares
on the New York Stock Exchange was $34.50.
_____________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
______________________________
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO
THE CONTRARY IS UNLAWFUL.
_____________________________
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
_____________________________
The date of this Prospectus is September 29, 1995.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER SECURITIES LAWS OF ANY SUCH STATE.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024 of the offices
of the Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, or at the regional offices of the Commission located at Seven World
Trade Center, 13th Floor, New York, New York 10048 and Suite 1400, Northwestern
Atrium Center, 500 West Madison Street, Chicago, Illinois 60661. Copies of
such material can be obtained from the principal offices of the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington D.C. 20549, at prescribed
rates. Reports, proxy materials and other information concerning the Company
can also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, Room 1102, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"). This Prospectus and any accompanying Prospectus Supplement do not
contain all the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is made to the Registration
Statement, copies of which may be obtained upon payment of a fee prescribed by
the Commission, or may be examined free of charge at the principal office of
the Commission in Washington, D.C.
Statements made in this Prospectus and any accompanying Prospectus
Supplement as to the contents of any contract or other document referred to are
not necessarily complete, and reference is made to the copy of such contract or
other document filed as an exhibit to the Registration Statement, each such
statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this Prospectus its
Annual Report on Form 10-K for the fiscal year ended December 31, 1994, its
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 1995 and
June 30, 1995 and its Current Reports on Form 8-K dated August 8, 1995, July
27, 1995, July 13, 1995 and March 8, 1995, which shall be deemed to be a part
hereof. The discussion of Federal income tax treatment of the Company and its
shareholders which is contained in the Company's Current Report on Form 8-K
dated March 4, 1992, including any amendment or report filed for the purpose of
updating such discussion, is hereby incorporated by reference into this
Prospectus and shall be deemed to be a part hereof.
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All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the termination of the offering of the Securities offered
hereby shall be deemed to be incorporated by reference into this Prospectus and
to be a part hereof from the date of filing such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in a
subsequently filed document, as the case may be, 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 Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a
copy (without exhibits) of any or all documents incorporated by reference into
this Prospectus. Requests for such copies should be directed to Lisa P.
McAlister, Vice President and Treasurer, Meditrust, 197 First Avenue, Needham
Heights, Massachusetts 02194, telephone (617) 433-6000.
_______________
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.
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THE COMPANY
Meditrust is the largest dedicated health care real estate investment
trust in the United States, based on its gross real estate investments of $1.7
billion as of June 30, 1995. The objective of the Company is to enable
shareholders to participate in the investment in health care related facilities
held primarily for the production of cash flows to be distributed to
shareholders. In meeting this objective, the Company invests in high quality
facilities that are managed by experienced operators and attempts to achieve
diversity in its property portfolio by sector of the health care industry,
geographic location, operator and form of investment.
As of June 30, 1995, the Company had investments in 285 facilities,
consisting of 240 long-term care facilities, 23 rehabilitation hospitals, six
psychiatric hospitals, five retirement living facilities, two alcohol and
substance abuse facilities, eight medical office buildings and one acute care
hospital. The properties are located in 34 different states and are operated
by 33 health care companies. Of the 33 different operators, seven are, or are
owned by, publicly-traded companies (i.e., Sun Healthcare Group, Inc.,
Continental Medical Systems, Inc. (a subsidiary of Horizon Healthcare Corp.),
Geriatric and Medical Centers, Inc., OrNda Healthcorp., Integrated Health
Services, Inc., HealthSouth Corporation and Mariner Health Group, Inc.), and
constitute 44% of the Company's gross real estate investments.
During the first six months of 1995, the Company committed $243 million
to new real estate investments, of which $172 million was funded. Of these
amounts, $126 million was committed and $55 million was funded during the
quarter ended June 30, 1995.
The Company's real estate investments are either owned by the Company
or secured by a mortgage lien. As of June 30, 1995 permanent mortgage loans
constituted 56%, sale/leaseback transactions constituted 40%, and development
mortgage financing constituted 4% of the Company's portfolio as measured by
gross real estate investments. The leases and mortgages provide for rental or
interest rates which generally range from 9.5% to 13.5% per annum of the
acquisition price or mortgage amount. The leases and mortgages generally
provide for an initial term of 10 years, with the leases having one or more
five-year renewal options. The leases and mortgages also provide for
additional rent and interest which are generally based upon a percentage of
increased revenues over specific base period revenues of the related
properties. For the year ended December 31, 1994, the aggregate amount of
additional rent and interest was approximately $8.2 million compared to $8.7
million for the year ended December 31, 1993.
In addition, the Company usually obtains guarantees from the parent
corporation, if any, of the operator or affiliates or individual principals of
the operator. Most obligations are backed by letters of credit or pledges of
certificates of deposit which cover from three to twelve months of lease or
mortgage payments. In addition, permanent mortgage and development mortgage
loans generally are cross-collateralized with any other mortgage and
development loans, leases or other agreements between the Company and the same
operator or any affiliated operators. Leases and mortgage loans generally are
cross-defaulted with any other leases or mortgages between the Company and the
same operator or any affiliated operators. With respect to development
mortgage loans, the Company generally requires guaranteed maximum price
construction contracts, performance completion bonds or
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guarantees and cost overrun guarantees. The Company enters into a development
mortgage loan when the Company will also be the permanent owner or
mortgage lender. In making its investment decisions, the Company reviews,
among other criteria, the operational viability of the facility, the experience
and competency of the operator and the financial strength of the guarantor.
In making its investment decisions, the Company reviews, among other
criteria, the operational viability of the facility, the experience and
competency of the operator and the financial strength of the guarantor. From
time to time, the Company enters into transactions with related parties. As of
June 30, 1995, the Company had total commitments of $101 million, of which $37
million was funded, to companies in which Abraham D. Gosman, the Company's
Chief Executive Officer, has an ownership interest. The Company expects to
enter into additional transactions with related parties in the future. All of
the terms and conditions of such transactions are subject to approval by the
independent Trustees of the Company. The Board of Trustees believes that the
terms of the transactions which the Company has entered into with related
parties are not less favorable to the Company than those prevailing at the time
for comparable transactions with unrelated persons.
The Company was organized to qualify, and intends to continue to
operate, as a real estate investment trust in accordance with Federal tax laws
and regulations. So long as the Company so complies, with limited exceptions,
the Company will not be taxed under Federal income tax laws on that portion of
its taxable income that it distributes to its shareholders. The Company has
distributed, and intends to continue to distribute, substantially all of its
real estate investment trust taxable income to shareholders.
In order to meet its ongoing capital requirements for additional
investments, the Company may raise additional equity capital through the sale
of Shares, Debt Securities, Share Warrants or Debt Securities Warrants or draw
against its revolving bank lines of credit.
The Company is a self-administered real estate investment trust, with
its principal executive offices at 197 First Avenue, Needham Heights,
Massachusetts 02194. Its telephone number is (617) 433-6000.
HEALTH CARE REFORM AND REGULATION
Many of the operators with which the Company does business rely on
government reimbursement, primarily Medicare and Medicaid, for a significant
portion of their operating revenues. During a recent session of the United
States Congress, there was active consideration of various proposals for
national health care reform, including the administration's proposal to cap
national health care spending and the future growth of Medicare and Medicaid
funding. No such legislation was passed during the 1994 session of Congress.
Such legislation may be reintroduced during current or future sessions of
Congress, although it is not possible to predict whether and when health care
reform legislation will be passed by Congress and, if passed, what features
such legislation will contain or the effect it may have on the nursing home,
assisted living or rehabilitation care industries, the reimbursements levels
available to health care providers or on the health care industry in general.
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From time to time, Medicaid, Medicare and other governmental payers
have reviewed the billing practices of many health care facilities operators
including certain of the operators with which the Company does business. It is
unclear what impact such reviews may have on these operators. The Company does
not believe, however, that any adverse findings against these operators would
materially affect the Company's financial position.
RATIO OF EARNINGS TO FIXED CHARGES
Year Ended December 31, Six-month
----------------------- Period Ended
1990 1991 1992 1993 1994 June 30,1995
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Ratio 1.67 l.60 1.88 2.02 2.19 2.63
For the purpose of calculating the ratio of earnings to fixed charges for
the years ended December 31, 1990, 1991, 1992, 1993 and 1994 and for the
six-month period ended June 30, 1995, net income has been added to interest
expense and that sum has been divided by such interest expense.
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement which accompanies
this Prospectus, the net proceeds from the sale of the Securities offered from
time to time hereby will be used for general business purposes, including the
repayment of bank lines of credit, if any, outstanding, and investments in
health care facilities. As of August 14, 1995, $75,000,000 was outstanding
under the Company's bank lines of credit. All currently outstanding loans
under the Company's bank lines of credit mature prior to July 1, 1997 and
accrue interest at the lenders' respective prime rates or the London Interbank
Offering Rate plus 1.00%. Pending such uses, the net proceeds will be invested
in short-term, interest-bearing, direct obligations issued or guaranteed by the
United States, certificates of deposit or accounts, or investment grade
commercial paper, consistent with the Company's qualification as a real estate
investment trust, the Company's Restated Declaration of Trust, as amended (the
"Declaration"), and the Company's agreements with its lenders.
DESCRIPTION OF SHARES
There is no limit on the number of Shares the Company is authorized to
issue. Shares may be issued by the Board of Trustees without any vote of the
shareholders. The outstanding Shares are of one class and without par value.
The following description is qualified in all respects by reference to the
Declaration and the By-laws of the Company, copies of which are incorporated by
reference as exhibits to the Registration Statement of which this Prospectus is
a part.
SHARES OF BENEFICIAL INTEREST. All Shares participate equally in
dividends and in net assets available for distribution to shareholders on
liquidation or termination of the Company, have one vote per Share on all
matters submitted to a vote of the shareholders and do not have
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cumulative voting rights in the election of Trustees. The Shares offered hereby
will be validly issued, fully paid and nonassessable by the Company upon
issuance.
REDEMPTION. For the Company to qualify as a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the "Code"), in any
taxable year, not more than 50% of its outstanding Shares may be owned by five
or fewer individuals and Shares must be owned by 100 or more persons during at
least 335 days of a taxable year of 12 months or during a proportionate part of
a shorter taxable year. In order to meet these requirements, the Trustees have
the power to redeem or prohibit the transfer of a sufficient number of Shares
selected in a manner deemed appropriate to maintain or bring the ownership of
the Shares into conformity with such requirements. In connection with the
foregoing, if the Trustees shall, at any time and in good faith, be of the
opinion that direct or indirect ownership of at least 9.9% or more of the Shares
has or may become concentrated in the hands of one beneficial owner, the
Trustees shall have the power (i) by lot or other means deemed equitable by them
to call for the purchase from any shareholder of the Company of a number of
Shares sufficient, in the opinion of the Trustees, to maintain or bring the
direct or indirect ownership of Shares of such owner to a level of no more than
9.9% of the outstanding Shares, and (ii) to refuse to transfer or issue Shares
to any person whose acquisition of such Shares would cause a beneficial holder
to hold in excess of 9.9% of the outstanding Shares. Further, any transfer of
Shares that would create a beneficial owner of more than 9.9% of the outstanding
Shares shall be deemed void and the intended transferee shall be deemed never to
have had an interest therein. The purchase price for any Shares so redeemed
shall be equal to the fair market value of the Shares reflected in the closing
sales price for the Shares, if then listed on a national securities exchange, or
the average of the closing sales price for the Shares if then listed on more
than one national securities exchange, or if the Shares are not then listed on a
national securities exchange, the latest bid quotation for the Shares if then
traded over-the-counter, on the last business day immediately preceding the day
on which notices of such acquisition are sent by the Company. From and after
the date fixed for purchase by the Trustees, the holder of any Shares so called
for purchase shall cease to be entitled to distributions, voting rights and
other benefits with respect to such Shares, except the right to payment of the
purchase price for the Shares.
The foregoing provisions may have the effect of discouraging unilateral
tender offers or other takeover proposals which certain shareholders might deem
in their interest or in which they might receive a substantial premium. The
provisions could also have the effect of insulating current management against
the possibility of removal and could, by possibly reducing temporary
fluctuations in market price caused by accumulations of Shares, deprive
shareholders of opportunities to sell at a temporarily higher market price.
ADDITIONAL PROVISIONS. The Declaration provides that annual meetings of
shareholders are to be held within six months after the end of each fiscal year
and special meetings of the shareholders may be called by the President of the
Company, a majority of the Trustees or a majority of the Independent Trustees
(defined in the Declaration) and shall be called upon the written request of the
holders of 10% or more of the outstanding Shares.
Whenever any action is to be taken by the shareholders, it shall, except
as otherwise clearly indicated in the Declaration of Trust, be authorized by
holders of a majority of the Shares then outstanding and entitled to vote
thereon. Notwithstanding the foregoing, at all elections of Trustees, voting by
shareholders shall be conducted under the non-cumulative method and the
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election of Trustees shall be by the affirmative vote of the holders of Shares
representing a plurality of the Shares then outstanding which are present in
person or by proxy at a meeting in which a quorum is present.
Whenever shareholders are required or permitted to take any action
(unless a vote at a meeting is specifically required, as with respect to
termination or amendment of the Declaration), such action may be taken without a
meeting by written consents setting forth the action so taken, signed by the
holders of a majority (or such higher percentage as may be specified) of the
outstanding Shares that would be entitled to vote thereon at a meeting.
Except with respect to matters on which a shareholders' vote is
specifically required by the Declaration, no action taken by the shareholders at
any meeting shall in any way bind the Trustees.
The Shares have no preemptive, conversion, exchange, sinking fund or
appraisal rights.
The Declaration provides that shareholders of the Company shall not be
subject to any liability for the acts or obligations of the Company and that, as
far as is practicable, each written agreement of the Company is to contain a
provision to that effect. No personal liability will attach to the shareholders
for claims under any contract containing such a provision in writing where
adequate notice is given of such provision, except possibly in a few
jurisdictions. With respect to all types of claims in such jurisdictions and
with respect to tort claims, contract claims where the shareholder liability is
not disavowed as described above, claims for taxes and certain statutory
liabilities in other jurisdictions, a shareholder may be held personally liable
to the extent claims are not satisfied by the Company. However, the Declaration
provides that, upon payment of any such liability, the shareholder will be
entitled to reimbursement from the general assets of the Company. The Trustees
intend to conduct the operations of the Company, with the advice of counsel, in
such a way as to avoid, as far as is practicable, the ultimate liability of the
shareholders of the Company. For example, almost all of the real estate and all
of the mortgages included in the assets of the Company are held by corporate
subsidiaries. The Trustees do not intend to provide insurance covering such
risks to shareholders.
TRANSFER AGENT AND REGISTRAR. Fleet National Bank, Providence, Rhode
Island, acts as transfer agent and registrar of the Shares.
DESCRIPTION OF DEBT SECURITIES
The Prospectus Supplement will describe certain terms of any Debt
Securities offered hereby, including (i) the title of such Debt Securities; (ii)
any limit on the aggregate principal amount of such Debt Securities and their
purchase price; (iii) the date or dates on which such Debt Securities will
mature; (iv) the rate or rates per annum (or manner in which interest is to be
determined) at which such Debt Securities will bear interest, if any, and the
date from which such interest, if any, will accrue; (v) the dates on which such
interest, if any, on such Debt Securities will be payable and the regular record
dates for such interest payment dates; (vi) any mandatory or optional sinking
fund or analogous provisions; (vii) additional provisions, if any, for the
defeasance of such Debt Securities; (viii) the date, if any, after which and the
price or prices at which such Debt Securities may, pursuant to any optional or
mandatory redemption
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or repayment provisions, be redeemed and the other detailed terms and provisions
of any such optional or mandatory redemption or repayment provisions; (ix)
whether such Debt Securities are to be issued in whole or in part in registered
form represented by one or more registered global securities (a "Registered
Global Security") and, if so, the identity of the depository for such Registered
Global Security or Securities; (x) certain applicable United States Federal
income tax consequences; (xi) any provisions relating to security for payments
due under such Debt Securities; (xii) any provisions relating to the conversion
or exchange of such Debt Securities into or for Shares or Debt Securities of
another series; (xiii) any provisions relating to the ranking of such Debt
Securities in right of payment as compared to other obligations of the
Company; (xiv) the denominations in which such Debt Securities are authorized to
be issued; (xv) the place or places where principal of, premium, if any, and
interest, if any, on such Debt Securities will be payable; (xvi) whether such
debt Securities are to be issued pursuant to an indenture of trust; and (xvii)
any other specific term of such Debt Securities, including any additional events
of default or covenants provided for with respect to such Debt Securities, and
any terms that may be required by or advisable under applicable laws or
regulations.
The Debt Securities may be issued in one or more series under an
Indenture to be executed by the Company and a trustee (the "Trustee"), a form of
which is included as an exhibit to the Registration Statement of which this
Prospectus is a part (the "Indenture"). The terms of the Debt Securities may
include those stated in the Indenture and those made a part of the Indenture
(before any supplements) by reference to the Trust Indenture Act of 1939, as
amended.
The following is a summary of certain provisions of the Indenture and
does not purport to be complete and is qualified in its entirety by reference to
the detailed provisions of the Indenture, including the definitions of certain
terms therein to which reference is hereby made, for a complete statement of
such provisions. Wherever particular provisions or sections of the Indenture or
terms defined therein are referred to herein, such provisions or definitions are
incorporated herein by reference.
GENERAL. The Indenture does not limit the aggregate principal amount of
Debt Securities that may be issued thereunder and provides that Debt Securities
may be issued from time to time in one or more series.
CONVERSION RIGHTS. The terms, if any, on which Debt Securities of any
series may be converted into Shares or Debt Securities of another series will
be set forth in the Prospectus Supplement relating thereto. To protect the
Company's status as a real estate investment trust ("REIT"), the holders of Debt
Securities of any series ("Holders") may not convert any Debt Security, and such
Debt Security shall not be convertible by any Holder, if as a result of such
conversion any person would then be deemed to beneficially own, directly or
indirectly, 9.9% or more of the then outstanding Shares.
The conversion price will be subject to adjustment under
certain conditions, including (i) the payment of dividends (and other
distributions) in Shares on any class of shares of the Company; (ii)
subdivisions, combinations and reclassifications of Shares; (iii) the issuance
to all or substantially all holders of Shares of rights or warrants entitling
them to subscribe for or purchase Shares at a price per Share (or having a
conversion price per Share) less than the then current market price; and (iv)
distributions to all or substantially all holders of Shares or shares
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of any other class, or evidences of indebtedness or assets (including
securities, but excluding those rights, warrants, dividends and distributions
referred to above and dividends and distributions not prohibited under the terms
of the Indenture) of the Company, subject to the limitation that all adjustments
by reason of any of the foregoing would not be made until they result in a
cumulative change in the conversion price of at least 1%. In the event the
Company shall effect any capital reorganization or reclassification of its
Shares or shall consolidate or merge with or into any trust or corporation
(other than a consolidation or merger in which the Company is the surviving
entity) or shall sell or transfer substantially all its assets to any other
trust or corporation, the Holders shall, if entitled to convert such Debt
Securities at any time after such transaction, receive upon conversion thereof,
in lieu of each Share into which the Debt Securities of such series would have
been convertible prior to such transaction, the same kind and amount of stock
and other securities, cash or property as shall have been issuable or
distributable in connection with such transaction with respect to each Share.
A conversion price adjustment made according to the provisions of the
Debt Securities of any series (or the absence of provision for such an
adjustment) might result in a constructive distribution to the Holders of Debt
Securities of such series or holders of Shares that would be subject to taxation
as a dividend. The Company may, at its option, make such reductions in the
conversion price, in addition to those set forth above, as the Board of Trustees
of the Company deems advisable to avoid or diminish any income tax to holders of
Shares resulting from any dividend or distribution of Shares (or rights to
acquire Shares) or from any event treated as such for income tax purposes or for
any other reason. The Board of Trustees will also have the power to resolve any
ambiguity or correct any error in the provisions relating to the adjustment of
the conversion price of the Debt Securities of such series and its actions in so
doing shall be final and conclusive.
Fractional Shares will not be issued upon conversion, but, in lieu
thereof, the Company will pay a cash adjustment based upon market price.
The Holders of Debt Securities of any series at the close of business on
an interest payment record date shall be entitled to receive the interest
payable on such Debt Securities on the corresponding interest payment date
notwithstanding the conversion thereof. However, Debt Securities surrendered
for conversion during the period from the close of business on any record date
for the payment of interest to the opening of business on the corresponding
interest payment date must be accompanied by payment of an amount equal to the
interest payable on such interest payment date. Holders of Debt Securities of
any series who convert Debt Securities of such series on an interest payment
date will receive the interest payable by the Company on such date and need not
include payment in the amount of such interest upon surrender of such Debt
Securities for conversion. Except as aforesaid, no payment or adjustment is to
be made on conversion for interest accrued on the Debt Securities of any series
or for dividends on Shares.
OPTIONAL REDEMPTION. The Debt Securities of any series that are
convertible into Shares will be subject to redemption, in whole or from time to
time in part, at any time for certain reasons intended to protect the Company's
status as a REIT at the option of the Company on at least 30 days' prior notice
by mail at a redemption price equal to 100% of the principal amount, plus
interest accrued to the date of redemption. Except as otherwise set forth in
the accompanying Prospectus Supplement, the Company may exercise its redemption
powers solely
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with respect to the securities of the security holder or holders which pose a
threat to the Company's REIT status and only to the extent deemed necessary by
the Company's Board of Trustees to preserve such status. (See "Redemption"
under "Description of Shares".)
DIVIDENDS, DISTRIBUTIONS AND ACQUISITIONS OF SHARES OF BENEFICIAL
INTEREST. The Indenture provides that the Company will not (i) declare or pay
any dividend or make any distribution on its Shares or to holders of its Shares
(other than dividends or distributions payable in its Shares or other than as
the Company determines is necessary to maintain its status as a REIT) or (ii)
purchase, redeem or otherwise acquire or retire for value any of its Shares or
permit any subsidiary to do so, if at the time of such action an Event of
Default (as defined in the Indenture) has occurred and is continuing or would
exist immediately after giving effect to such action.
ADDITIONAL COVENANTS. Any additional covenants of the Company with
respect to a series of the Debt Securities will be set forth in the Prospectus
Supplement relative thereto.
MODIFICATION OF THE INDENTURE. Under the Indenture, with certain
exceptions, the rights and obligations of the Company with respect to any series
of Debt Securities and the rights of Holders of such series may only be modified
by the Company and the Trustee with the consent of the Holders of at least a
majority in principal amount of the outstanding Debt Securities of such series.
However, without the consent of each Holder of any Debt Securities affected, an
amendment, waiver or supplement may not (i) reduce the principal of, or rate of
interest on, any Debt Securities; (ii) change the stated maturity date of the
principal of, or any installment of interest on, any Debt Securities; (iii)
waive a default in the payment of the principal amount of, or the interest on,
or any premium payable on redemption of, any Debt Securities; (iv) change the
currency for payment of the principal of, or premium or interest on, any Debt
Securities; (v) impair the right to institute suit for the enforcement of any
such payment when due; (vi) adversely affect any right to convert any Debt
Securities; (vii) reduce the amount of outstanding Debt Securities necessary to
consent to an amendment, supplement or waiver provided for in the Indenture; or
(viii) modify any provisions of the Indenture relating to the modification and
amendment of the Indenture or waivers of past defaults, except as otherwise
specified.
EVENTS OF DEFAULT, NOTICE AND WAIVER. Except as otherwise set forth in
the accompanying Prospectus Supplement, the following is a summary of certain
provisions of the Indenture relating to events of default, notice and waiver.
The following are Events of Default under the Indenture with respect to
any series of Debt Securities: (i) default in the payment of interest on the
Debt Securities of such series when due and payable, which continues for 30
days; (ii) default in the payment of principal of (and premium, if any) on the
Debt Securities when due, at maturity, upon redemption or otherwise, which
continues for five Business Days; (iii) failure to perform any other covenant of
the Company contained in the Indenture or the Debt Securities of such series
which continues for 60 days after written notice as provided in the Indenture;
(iv) default under any bond, debenture or other Indebtedness (as defined in the
Indenture) of the Company or any subsidiary if (a) either (x) such event of
default results from the failure to pay any such Indebtedness at maturity or (y)
as a result of such event of default, the maturity of such Indebtedness has been
accelerated prior to its expressed maturity and such acceleration shall not be
rescinded or
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annulled or the accelerated amount paid within ten days after notice to the
Company of such acceleration, or such Indebtedness having been discharged, and
(b) the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal or
interest thereon, or the maturity of which has been so accelerated, aggregates
$10,000,000 or more; (v) certain events of bankruptcy, insolvency or
reorganization relating to the Company; and (vi) any other Event of Default
provided with respect to the Debt Securities of that series.
If an Event of Default occurs and is continuing with respect to the Debt
Securities of any series, either the Trustee or the Holders of a majority in
aggregate principal amount of the outstanding Debt Securities of such series may
declare the Debt Securities due and payable immediately.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of any Default or Event of Default with respect to the Debt
Securities of any series, give to the Holders of Debt Securities notice of all
uncured Defaults and Events of Default known to it, but the Trustee will be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interest of such Holders, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest on any of the Debt Securities of such series.
The Indenture provides that the Holders of a majority in aggregate
principal amount of the Debt Securities of any series then outstanding may
direct the time, method and place of conducting any proceedings for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of such series. The right of a
Holder to institute a proceeding with respect to the Indenture is subject to
certain conditions precedent including notice and indemnity to the Trustee, but
the Holder has an absolute right to receipt of principal of (and premium, if
any) and interest on such Holder's Debt Securities on or after the respective
due dates expressed in the Debt Securities, and to institute suit for the
enforcement of any such payments.
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series then outstanding may on behalf of the Holders of all
Debt Securities of such series waive certain past defaults, except a default in
payment of the principal of (or premium, if any) or interest on any Debt
Securities of such series or in respect of certain provisions of the Indenture
which cannot be modified or amended without the consent of the Holder of each
outstanding Debt Securities of such series affected thereby.
The Company will be required to furnish to the Trustee annually a
statement of certain officers of the Company stating whether or not they know of
any Default or Events of Default (as defined in the Indenture) and, if they have
knowledge of a Default or Event of Default, a description of the efforts to
remedy the same.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE. The Indenture provides that
the Company may merge or consolidate with, or sell or convey all or
substantially all of its assets to, any other trust or corporation, provided
that (i) either the Company shall be the continuing entity, or the successor
entity (if other than the Company) shall be an entity organized and existing
under the laws of the United States or a state thereof or the District of
Columbia (although it
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may, in turn, be owned by a foreign entity) and such entity shall expressly
assume by supplemental indenture all of the obligations of the Company under the
Debt Securities of any series and the Indenture, (ii) immediately after giving
effect to such transactions no Default or Event of Default shall have
occurred and be continuing, and (iii) the Company shall have delivered to the
Trustee an Officers' Certificate and opinion of counsel, stating that the
transaction and supplemental indenture comply with the Indenture. The Indenture
does not contain any provision requiring the Company to repurchase the Debt
Securities of any series at the option of the Holders thereof in the event of a
leveraged buyout, recapitalization or similar restructuring of the Company, even
though the Company's creditworthiness and the market value of the Debt
Securities may decline significantly as a result of such transaction. The
Indenture does not protect Holders of the Debt Securities of any series against
any decline in credit quality, whether resulting from any such transaction or
from any other cause.
GLOBAL SECURITIES. The Debt Securities of a series may be issued in
whole or in part in global form (the "Global Securities"). The Global
Securities will be deposited with a depository (the "Depository"), or with a
nominee for a Depository, identified in the Prospectus Supplement. In such
case, one or more Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding Debt Securities of the series to be represented by such Global
Security or Securities. Unless and until it is exchanged in whole or in part
for Debt Securities in definitive form, a Global Security may not be transferred
except as a whole by the Depository for such Global Security to a nominee of
such Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by such Depository or any such nominee to a
successor for such Depository or a nominee of such successor.
The specific material terms of the depository arrangement with respect
to any portion of a series of Debt Securities to be represented by a Global
Security will be described in the Prospectus Supplement. The Company
anticipates that the following provisions will apply to all depository
arrangements.
Upon the issuance of a Global Security, the Depository for such Global
Security will credit, on its book entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of persons that have accounts with such Depository
("participants"). The accounts to be credited shall be designated by any
underwriters or agents participating in the distribution of such Debt
Securities. Ownership of beneficial interests in a Global Security will be
limited to participants or persons that may hold interests through
participants. Ownership of beneficial interests in such Global Security will
be shown on, and the transfer of that ownership will be effected only through
records maintained by the Depository for such Global Security (with respect to
interests of participants) or by participants or persons that hold through
participants (with respect to interests of persons other than participants).
So long as the Depository for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depository or such nominee as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture; provided, however, that for purposes of obtaining any consents or
directions required to be given by the Holders of the Debt Securities, the
Company, the Trustee and its agents will treat a person as the holder of such
principal amount of Debt Securities as specified in a written statement of the
Depository.
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Principal, premium, if any, and interest payments, if any, on Debt
Securities represented by a Global Security registered in the name of a
Depository or its nominee will be made to such Depository or its nominee, as the
case may be, as the registered owner of such Global Security. None of the
Company, the Trustee or any Paying Agent for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in such Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company expects that the Depository for any Debt Securities
represented by a Global Security, upon receipt of any payment of principal,
premium, if any, or interest will immediately credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of such
Depository. The Company also expects that payments by participants will be
governed by standing instructions and customary practices, as is now the case
with the securities held for the accounts of customers registered in "street
names," and will be the responsibility of such participants.
If the Depository for any Debt Securities represented by a Global
Security is at any time unwilling or unable to continue as Depository and a
successor Depository is not appointed by the Company within 90 days, the Company
will issue each Debt Security in definitive form to the beneficial owners
thereof in exchange for such Global Security. In addition, the Company may at
any time and in its sole discretion determine not to have any of the Debt
Securities of a series represented by one or more Global Securities and, in such
event, will issue Debt Securities of such series in definitive form in exchange
for all of the Global Security or Securities representing such Debt Securities.
The laws of some states require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such laws may
impair the ability to transfer beneficial interests in Debt Securities
represented by Global Securities.
GOVERNING LAW. The Indenture and the Debt Securities will be governed
by and construed in accordance with the laws of the Commonwealth of
Massachusetts.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities or Shares. Securities Warrants may be issued independently or
together with Debt Securities or Shares offered by any Prospectus Supplement and
may be attached to or separate from such Debt Securities or Shares. Each series
of Securities Warrants will be issued under a separate warrant agreement (a
"Securities Warrant Agreement") to be entered into between the Company and a
bank or trust company, as Securities Warrant agent, all as set forth in the
Prospectus Supplement relating to the particular issue of offered Securities
Warrants. The Securities Warrant agent will act solely as an agent of the
Company in connection with the Securities Warrant certificates relating to the
Securities Warrants and will not assume any obligation or relationship of agency
or trust for or with any holders of Securities Warrant certificates or
beneficial owners of Securities Warrants. The following summaries of certain
provisions of the Securities Warrant Agreement and Securities Warrants do not
purport to be complete and are
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subject to, and are qualified in their entirety by reference to, all the
provisions of the Securities Warrant Agreement and the Securities Warrant
certificates relating to each series of Security Warrants which will be filed
with the Commission and incorporated by reference as an exhibit to the
Registration Statement of which this Prospectus is a part at or prior to the
time of the issuance of such series of Security Warrants.
If Debt Securities Warrants are offered, the applicable Prospectus
Supplement will describe the terms of such Securities Warrants, including the
following where applicable: (i) the offering price, (ii) the denominations and
terms of the series of Debt Securities purchasable upon exercise of such
Securities Warrants, (iii) the designation and terms of any series of Debt
Securities with which such Securities Warrants are being offered and the number
of such Securities Warrants being offered with each such Debt Security, (iv) the
date, if any, on and after which such Securities Warrants and the related series
of Debt Securities will be transferable separately, (v) the principal amount of
the series of Debt Securities purchasable upon exercise of each such Securities
Warrant and the price at which such principal amount of Debt Securities of such
series may be purchased upon such exercise, (vi) the date on which the right to
exercise such Securities Warrants shall commence and the date (the "Expiration
Date") on which such right shall expire, (vii) whether the Securities Warrants
will be issued in registered or bearer form, (viii) any special United States
Federal income tax consequences, (ix) the terms, if any, on which the Company
may accelerate the Expiration Date and (x) any other terms of such Securities
Warrants.
In the case of Share Warrants, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including the following where
applicable: (i) the offering price, (ii) the aggregate number of Shares
purchasable upon exercise of such Securities Warrants and the exercise price,
(iii) the designation and terms of the Securities with which such Securities
Warrants are being offered, if any, and the number of such Securities Warrants
being offered with each such Security, (iv) the date, if any, on and after which
such Securities Warrants and the related series of Debt Securities or Shares
will be transferable separately, (v) the date on which the right to exercise
such Securities Warrants shall commence and the Expiration Date, (vi) any
special United States Federal income tax consequences and (vii) any other terms
of such Securities Warrants.
Securities Warrant certificates may be exchanged for new Securities
Warrant certificates of different denominations, may (if in registered form) be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Securities Warrant agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of any Debt
Securities Warrants, holders of such Securities Warrants will not have any of
the rights of holders of the Debt Securities purchasable upon such exercise,
including the right to receive payments of principal of, premium, if any, or
interest, if any, on such Debt Securities or to enforce covenants in the
applicable indenture. Prior to the exercise of any Share Warrants, holders of
such Securities Warrants will not have any rights of holders of such Shares,
including the right to receive payments of dividends, if any, on such Shares, or
to exercise any applicable right to vote.
CERTAIN RISK CONSIDERATIONS. Any Securities Warrants issued by the
Company will involve a certain degree of risk, including risks arising from the
fluctuations in the price of the
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underlying securities and general risks applicable to the stock market (or
markets) on which the underlying securities are traded.
Prospective purchasers of the Securities Warrants should recognize that
the Securities Warrants may expire worthless and, thus, purchasers should be
prepared to sustain a total loss of the purchase price of their Securities
Warrants. This risk reflects the nature of a Securities Warrant as an asset
which, other factors held constant, tends to decline in value over time and
which may, depending on the price of the underlying securities, become worthless
when it expires. The trading price of a Securities Warrant at any time is
expected to increase as the price, or, if applicable, dividend rate on the
underlying securities increases. Conversely, the trading price of a Securities
Warrant is expected to decrease as the time remaining to expiration of the
Securities Warrant decreases and as the price or, if applicable, dividend rate
on the underlying securities, decreases. Assuming all other factors are held
constant, the more a Securities Warrant is "out of the money" (i.e., the more
the exercise price exceeds the price of the underlying securities and the
shorter its remaining term to expiration), the greater the risk that a purchaser
of the Securities Warrant will lose all or part of his or her investment. If
the price of the underlying securities does not rise before the Securities
Warrant expires to an extent sufficient to cover a purchaser's cost of the
Securities Warrant, the purchaser will lose all or part of his or her investment
in such Securities Warrant upon expiration.
In addition, prospective purchasers of the Securities Warrants should be
experienced with respect to options and option transactions and understand the
risks associated with options and should reach an investment decision only after
careful consideration, with their financial advisers, of the suitability of the
Securities Warrants in light of their particular financial circumstances and the
information discussed herein and, if applicable, the Prospectus Supplement.
Before purchasing, exercising or selling any Securities Warrants, prospective
purchasers and holders of Securities Warrants should carefully consider, among
other things, (i) the trading price of the Securities Warrants, (ii) the price
of the underlying securities at such time, (iii) the time remaining to
expiration and (iv) any related transaction costs. Some of the factors referred
to above are in turn influenced by various political, economic and other factors
that can affect the trading prices of the underlying securities and should be
carefully considered prior to making any investment decisions.
Purchasers of the Securities Warrants should further consider that the
initial offering price of the Securities Warrants may be in excess of the price
that a purchaser of options might pay for a comparable option in a private, less
liquid transaction. In addition it is not possible to predict the price at
which the Securities Warrants will trade in the secondary market or whether any
such market will be liquid. The Company may, but is not obligated to, file an
application to list any Securities Warrants issued on a United States national
securities exchange. To the extent that any Securities Warrants are exercised,
the number of Securities Warrants outstanding will decrease, which may result in
a lessening of the liquidity of the Securities Warrants. Finally, the
Securities Warrants will constitute direct, unconditional and unsecured
obligations of the Company and as such will be subject to any changes in the
perceived creditworthiness of the Company.
EXERCISE OF SECURITIES WARRANTS. Each Securities Warrant will entitle
the holder thereof to purchase such principal amount of Debt Securities or
number of Shares, as the case may be, at such exercise price as shall in each
case be set forth in, or calculable from, the Prospectus
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Supplement relating to the offered Securities Warrants. After the close of
business on the Expiration Date (or such later date to which such Expiration
Date may be extended by the Company), unexercised Securities Warrants will
become void.
Securities Warrants may be exercised by delivering to the Securities
Warrant agent payment as provided in the applicable Prospectus Supplement of the
amount required to purchase the Debt Securities or Shares, as the case may be,
purchasable upon such exercise together with certain information set forth on
the reverse side of the Securities Warrant certificate. Securities Warrants
will be deemed to have been exercised upon receipt of payment of the exercise
price, subject to the receipt within five Business Days of the Securities
Warrant certificate evidencing such Securities Warrants. Upon receipt of such
payment and the Securities Warrant certificate properly completed and duly
executed at the corporate trust office of the Securities Warrant agent or any
other office indicated in the applicable Prospectus Supplement, the Company
will, as soon as practicable, issue and deliver the Debt Securities or Shares,
as the case may be, purchasable upon such exercise. If fewer than all of the
Securities Warrants represented by such Securities Warrant certificate are
exercised, a new Securities Warrant certificate will be issued for the
remaining amount of Securities Warrants.
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENT. The
Securities Warrant Agreements may be amended or supplemented without the consent
of the holders of the Securities Warrants issued thereunder, to effect changes
that are not inconsistent with the provisions of the Securities Warrants and
that do not adversely affect the interest of the holders of the Securities
Warrants.
SHARE WARRANT ADJUSTMENTS. Unless otherwise indicated in the applicable
Prospectus Supplement, the exercise price of and the number of Shares covered by
a Share Warrant are subject to adjustment in certain events, including (i)
payment of a dividend on the Shares payable in Shares and Share splits,
combinations or reclassification of Shares, (ii) issuance to all holders of
Shares of rights or warrants to subscribe for or purchase Shares at less than
their current market price (as defined in the Securities Warrant Agreement for
such series of Share Warrants) and (iii) certain distributions of evidences of
indebtedness or assets (including securities but excluding cash, dividends or
distributions paid out of consolidated earnings or retained earnings or
dividends payable in Shares or of subscription rights and warrants excluding
those referred to above).
No adjustments in the exercise price of and the number of Shares covered
by a Share Warrant will be made for regular quarterly or other periodic or
recurring cash dividends or distributions or for cash dividends or distributions
to the extent paid from consolidated earnings or retained earnings. No
adjustment will be required unless such adjustment would require a change of at
least 1% in the exercise price then in effect. Except as stated above, the
exercise price of and the number of Shares covered by a Share Warrant will not
be adjusted for the issuance of Shares or any securities convertible into or
exchangeable for Shares or carrying the right or option to purchase or otherwise
acquire the foregoing in exchange for cash, other property or services.
In the event of any (i) consolidation or merger of the Company with or
into any entity (other than consolidation or a merger that does not result in
any reclassification, conversion, exchange or cancellation of outstanding
Shares), (ii) sale, transfer, lease or conveyance of all
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or substantially all of the assets of the Company or (iii) reclassification,
capital reorganization or change of the Shares (other than solely a change
in par value), then any holder of a Share Warrant will be entitled, on or after
the occurrence of any such event, to receive on exercise of such Share Warrant
the kind and amount of Shares or other securities, cash or other property (or
any combination thereof) that the holder would have received had such holder
exercised such holder's Share Warrant immediately prior to the occurrence of
such event. If the consideration to be received upon exercise of the Share
Warrant following any such event consists of common stock (or its equivalent) of
the surviving entity, then from and after the occurrence of such event, the
exercise price of such Share Warrant will be subject to the same anti-dilution
and other adjustments described in the second preceding paragraph, applied as if
such common stock were Shares.
PLAN OF DISTRIBUTION
General.
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The Company may sell the Securities in any of three ways: (i) through
underwriting syndicates represented by one or more managing underwriters, or by
one or more underwriters without a syndicate; (ii) through agents designated
from time to time; and (iii) directly to investors. The names of any
underwriters or agents of the Company involved in the sale of the Securities in
respect of which this Prospectus is being delivered and any applicable
commissions or discounts will be set forth in the Prospectus Supplement. The
net proceeds to the Company from such sale will also be set forth in the
Prospectus Supplement.
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices (which may be changed from
time to time), at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Prospectus
Supplement will describe the method of distribution of the Securities.
In connection with the sale of Securities, underwriters or agents acting
on the Company's behalf may receive compensation from the Company or from
purchasers of Securities for whom they may act as agents, in the form of
discounts, concessions or commissions. The underwriter, dealers and agents that
participate in the distribution of Securities may be deemed to be underwriters
under the Securities Act and any discounts or commissions received by them and
any profit on the resale of Securities by them may be deemed to be underwriting
discounts and commissions under the Securities Act. Any such underwriter will be
identified and any such compensation will be described in the Prospectus
Supplement.
Agents and underwriters may be entitled under agreements entered into
with the Company to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which the agents or underwriters may be required to make in respect
thereof. Agents and underwriters may engage in transactions with or perform
services for the Company in the ordinary course of business.
Structured Equity Program.
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The Company may also issue and sell Shares from time to time through one
or more sales agents (to be named in a prospectus supplement hereto, the
"Agent") in ordinary brokers'
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transactions on the New York Stock Exchange (the "NYSE"). Such sales, if any,
will be effected during a series of one or more pricing periods (each, a
"Pricing Period"), each consisting of five consecutive calendar days in
duration, unless a shorter period has otherwise been agreed to by the Company
and the Agent. For each Pricing Period, an Average Market Price (as
hereinafter defined) will be computed. With respect to any Pricing Period,
"Average Market Price" shall equal the average of the arithmetic mean of the
high and low sales prices of the Shares of the Company reported on the NYSE for
each trading day of such Pricing Period.
The net proceeds to the Company with respect to sales of Shares in any
Pricing Period up to a maximum amount agreed to in advance with the Agent (the
"Average Market Price Shares") will equal a percentage (the "Company's
Percentage") of the Average Market Price for each Share sold during the Pricing
Period (subject to adjustment in certain circumstances), plus Excess Proceeds
(as defined below), if any. The compensation to the Agent for sales of Average
Market Price Shares in any Pricing Period will equal the difference between the
aggregate gross sales price at which such sales are actually effected and the
net proceeds to the Company for such sales, but in no event will exceed 10% of
the aggregate gross sales prices of the Average Market Price Shares during any
Pricing Period (the "Maximum Commission"). To the extent that such aggregate
gross sales prices are less than the Average Market Price, the compensation to
the Agent will be correspondingly reduced; to the extent that such aggregate
gross sales prices are greater than the Average Market Price, the compensation
to the Agent will be correspondingly increased (but in no event will exceed the
Maximum Commission). In the event that the average aggregate gross sales price
in any Pricing Period equals the Company's Percentage of the Average Market
Price (or less) for such Pricing Period, all of the proceeds from such sales
will be for the account of the Company and no compensation will be payable to
the Agent. To the extent that the Agent's compensation under the foregoing
formula would otherwise exceed the Maximum Commission in any Pricing Period, the
excess will constitute additional net proceeds to the Company (the "Excess
Proceeds").
Any Shares sold by the Agent during the Pricing Period on behalf of the
Company other than Average Market Price Shares ("Additional Shares") will be at
a fixed commission rate based on a percentage of the Share price per Share. In
no event will the compensation to the Agent be in excess of any applicable
requirements of the National Association of Securities Dealers, Inc.
Settlements of sales of Additional Shares and Average Market Price
Shares will occur on the third business day following the date on which any such
sales are made. Purchases of Shares from the Agent, as sales agent for the
Company, will settle the regular way on the NYSE. Compensation to the Agent
with respect to sales of Average Market Price Shares will be paid out of the
proceeds of such settlements. There is no arrangement for funds to be received
in an escrow, trust or similar arrangement.
At the end of each Pricing Period, the Company will file a Prospectus
Supplement under the applicable paragraph of Rule 424(b) promulgated under the
Act, which Prospectus Supplement will set forth the name of the Agent, dates
included in such Pricing Period, the number of such Shares sold through the
Agent as sales agent (identifying separately the number of Average Market Shares
and any Additional Shares), the high and low prices at which Average Market
Shares were sold during such Pricing Period, the net proceeds to the Company,
19
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the compensation payable by the Company to the Agent with respect to such sales
pursuant to the formula set forth above and other relevant information. Unless
otherwise indicated in a Prospectus Supplement, the Agent will act as sales
agent on a best efforts basis.
In connection with the sale of the Shares on behalf of the Company, the
Agent will be deemed to be an "underwriter" within the meaning of the Securities
Act, and the compensation of the Agent will be deemed to be underwriting
commissions or discounts. The Company intends to provide indemnification and
contribution to the Agent against certain civil liabilities, including
liabilities under the Securities Act. The Agent may engage in transactions
with, or perform services for, the Company in the ordinary course of business.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for
the Company by Nutter, McClennen & Fish, Boston, Massachusetts. In addition,
Nutter, McClennen & Fish will pass upon certain Federal income tax matters
relating to the Company. The name of any legal counsel that passes on the
validity of the other Securities offered hereby for any underwriter or agent
will be set forth in the applicable Prospectus Supplement.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1994
and 1993 and the related consolidated statements of income, changes in
shareholders' equity and cash flows for each of the three years in the period
ended December 31, 1994, and the financial statement schedules incorporated by
reference in this Prospectus and elsewhere in the Registration Statement, have
been audited by Coopers & Lybrand L.L.P., independent accountants, as indicated
in their report with respect thereto, and are incorporated by reference herein
in reliance upon the authority of said firm as experts in accounting and
auditing. Any financial statements and schedules hereafter incorporated by
reference in the registration statement of which this Prospectus is a part that
have been audited and are the subject of a report by independent accountants
will be so incorporated by reference in reliance upon such reports and upon the
authority of such firms as experts in accounting and auditing to the extent
covered by consents filed with the Commission.
20
23
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE HEREIN, IN
CONNECTION WITH THIS OFFERING AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR ANY OTHER PERSON. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL, OR SOLICITATION OF AN OFFER TO BUY, ANY OF THE SECURITIES IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION. THE DELIVERY OF THIS PROSPECTUS AT ANY TIME
DOES NOT IMPLY THAT THE INFORMATION IN THE PROSPECTUS IS CORRECT AS OF ANY TIME
SUBSEQUENT TO ITS DATE.
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
Available Information............ 2
Incorporation of Certain
Documents by Reference......... 2
The Company...................... 4
Health Care Reform
and Regulation.................. 5
Ratio of Earnings to Fixed
Charges........................ 6
Use of Proceeds.................. 6
Description of Shares............ 6
Description of Debt
Securities..................... 8
Description of Securities
Warrants....................... 14
Plan of Distribution............. 18
Legal Matters.................... 20
Experts.......................... 20
---------------------------------
MEDITRUST
PROSPECTUS
September 29, 1995
-----------------------------------
24
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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% 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 subparagraphs (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(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 of 1933, each filing of
the registrant's annual report
II-1
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pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this 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) The undersigned registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in the form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective.
(d) The undersigned registrant hereby undertakes that for the purpose of
determining any liability under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus 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.
(e) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, officers and controlling persons of
the registrant pursuant to the provisions of the registrant's Restated
Declaration of Trust, as amended, By-laws, as amended, the agreements described
under Item 15 of this Registration Statement or otherwise, the registrant has
been advised that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or a controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy, as expressed in the
Securities Act of 1933, and will be governed by the final adjudication of such
issue.
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26
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-3 and has duly caused this amendment to
the registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Boston, Commonwealth of Massachusetts
on September 29, 1995.
MEDITRUST
By: /s/ Abraham D. Gosman*
-------------------------------------
Abraham D. Gosman, Chairman of
the Board and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment to the registration statement has been signed below by the
following persons on behalf of the registrant in the capacities and on the dates
indicated.
Signature Title Date
- --------- ----- ----
/s/ Abraham D. Gosman* Chairman of the
- --------------------------- Board and Chief
Abraham D. Gosman Executive Officer September 29, 1995
(Principal Executive Officer)
/s/ Lisa P. McAlister* Treasurer and
- ------------------------------- Vice President
Lisa P. McAlister (Principal
Financial and Accounting Officer) September 29, 1995
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/s/ David F. Benson* President
- ------------------------------- and Trustee September 29, 1995
David F. Benson
/s/ Edward W. Brooke* Trustee September 29, 1995
- -----------------------------
Edward W. Brooke
/s/ Hugh L. Carey* Trustee September 29, 1995
- -------------------------------
Hugh L. Carey
/s/ Robert Cataldo* Trustee September 29, 1995
- --------------------------------
Robert Cataldo
/s/ Philip L. Lowe* Trustee September 29, 1995
- --------------------------------
Philip L. Lowe
Trustee September 29, 1995
- ------------------------------------
Thomas J. Magovern
/s/ Gerald Tsai, Jr.* Trustee September 29, 1995
- ----------------------------------
Gerald Tsai, Jr.
Trustee September 29, 1995
- -------------------------------------------
Frederick W. Zuckerman
*By: /s/ Michael J. Bohnen
------------------------------
Michael J. Bohnen,
Attorney-in-Fact
A power of attorney was filed with the Registration Statement.
II-4